Corruption findings result in pressure on media, intimidation of activists and civil society protest

Introduction

This is an update on developments concerning freedom of expression, association and assembly in Kyrgyzstan from October to December 2019. The International Partnership for Human Rights (IPHR) and the Legal Prosperity Foundation (LPF) have prepared it as part of their cooperation with the CIVICUS Monitor.

The period covered by this update saw the end of the second year in office of President Sooronbay Jeenbekov, who was inaugurated in November 2017. When taking office, Jeenbekov announced an uncompromising fight against corruption, set out judicial reform as a priority and committed to guarantee freedom of expression in the country. Recent developments have called into question the realisation of these commitments.

The findings of a media investigation published in November 2019 revealed systematic corruption within Kyrgyzstan’s Customs Service. Civil society criticised the lack of effective measures by the authorities in response to these allegations, saying that this reinforced the impression that the fight against corruption is carried out in a selective and politicised manner in the country. Events that followed the publication of the media investigation also renewed concerns about the use of the court system to put pressure on media, as well as the failure of the authorities to protect journalists and activists speaking out about corruption.

In particular, the media investigation of high-level government corruption resulted in a high-profile defamation case against three leading independent media outlets: Radio Azattyk (the Kyrgyz service of Radio Free Europe/Radio Liberty) and Kloop, which conducted the investigation together with the global Organized Crime and Corruption Reporting Project (OCCRP), as well as 24.kg, which covered the findings. A former top customs official who featured as a key figure in the corruption investigation and his family members sued these outlets, seeking massive damages. A local court quickly moved to freeze the bank accounts of the defendants, as requested by the ex-official and his relatives. Following a national and international outcry, the ex-official and his co-plaintiffs withdrew this request. However, they did not drop the lawsuits or reduce their claims for damages.

In another development denounced by media watchdogs, a number of Kyrgyzstani websites were subjected to concerted DDoS attacks in December 2019 after publishing an open source report about the luxurious lifestyle of the wife of the former top customs official implicated in the corruption investigation. Moreover, human rights defenders Nurbek Toktakunov and Dinara Oshurakhunova received threats because of their calls for adequate anti-corruption measures following the publication of this investigation.

Two peaceful rallies held in the centre of the capital Bishkek on 26th November and 18th December 2019, respectively, gathered hundreds of civil society activists, human rights defenders, journalists, public figures and other citizens, who demanded an end to corruption and protection of the freedom of expression. The rallies took place without active law enforcement interference, although local courts had banned protests in central Bishkek during the periods in question – in violation of national and international standards on freedom of assembly.

Leaders of the radical Kirk Choro movement used the anti-corruption protests, which they dubbed as “pro-American”, to renew calls for the adoption of a so-called Foreign Agents law on NGOs in the country. A parliamentary deputy subsequently argued that new draft legislation was needed to ensure financial transparency of NGOs. This bill did not contain such draconian and stigmatising provisions as the Foreign Agents draft law that the parliament previously considered but eventually rejected in 2016. However, civil society representatives still feared that the proposed new reporting obligations might be used to harass “inconvenient” NGOs.

In addition to the high-profile defamation case resulting from the corruption investigation, there were also other cases where people in power sought excessive damages from media because of articles considered defamatory. Local courts ruled in favour of the plaintiffs in all these cases, although they awarded significantly lower damages than those sought in some of them. In a more promising development, a media self-regulatory body considered several complaints filed by parliamentary deputies concerning media articles and issued non-legally binding decisions that did not involve any monetary compensation.

Facebook blogger Aftandil Zhorobekov was facing charges of inciting inter-regional discord under a broadly worded Criminal Code provision. The national security services justified the charges against the blogger by referring to his criticism of the authorities, as well as offensive comments made by visitors to his page. This gave rise to concerns that Zhorobekov was charged for exercising his freedom of expression and that he was held liable for the actions of others.

In December 2019, the Supreme Court again upheld the life sentence against human rights defender Azimjan Askarov when reviewing an appeal filed by his lawyers against a lower-level court decision, which rejected the defender’s request to reconsider his sentence based on new Criminal Code provisions. The ruling did not comply with the 2016 decision of the UN Human Rights Committee, which called for the defender’s release and the quashing of his conviction.

At the end of his visit to Kyrgyzstan in December 2019, UN Special Rapporteur on minority issues Fernand de Varennes sounded an alarm about hostility against human rights defenders and journalists who monitor and report on the situation of minorities in the country, as well as the use of legal provisions on incitement to hatred to suppress and criminalise their work.

Freedom of expression

High-profile defamation case against media

The findings of an investigation conducted by Radio Azattyk and the Kloop news site together with the global OCCPR network, which was published on 21st November 2019, revealed systematic corruption within Kyrgyzstan’s Customs Service. The investigation alleged in particular that an underground cargo empire had funnelled massive bribes to customs service officials. While over two dozen journalists from the three organisations worked for months on the investigation, some of them reportedly faced threats and surveillance in the course of it. In addition, a major source of the investigation was murdered in Istanbul. These developments gave rise to serious security concerns, based on which the names of the journalists involved in the investigation were not made public.

Following the publication of the attention-grabbing investigation, former Customs Service Deputy Head Raimbek Matraimov – a key figure featured in the probe – and members of his family filed defamation lawsuits against Radio Azattyk and Kloop, a journalist working with the former outlet, as well as 24.kg, one of the news outlets that covered the investigation findings. The plaintiffs requested a total of more than 60 million Som (close to 800 000 EUR) in compensation for alleged moral damages. They also requested that the bank accounts of the defendants be frozen pending the consideration of the case. On 10th December 2019, Bishkek’s Sverdlov District Court ruled in favour of this second request.

The news about the defamation lawsuits, the excessive damages sought by Matraimov and his relatives, as well as the court’s order to freeze the bank accounts of the media outlets and the journalist, caused an outcry both in Kyrgyzstan and abroad. In response to this outcry, the plaintiffs asked the district court to repeal the decision to freeze the bank accounts of the defendants, which it did on 13th December 2019. However, Matraimov and his co-claimants did not withdraw their lawsuits or back down on their multi-million Som requests for compensation. At a preliminary hearing on 19th December 2019, Sverdlov District Court set the start date for the consideration of the merits of the case at 20th January 2020. The court also ruled to prohibit photo and video footage during the proceedings.

In a related development of serious concern, starting on 17th December 2019, a number of Kyrgyzstani websites were subjected to concerted DDoS attacks that restricted access to these resources. The attacks began after the sites published an investigative report produced by Factcheck.kg about the luxurious lifestyle of Raimbek Matraimov’s wife, as publicly displayed on her social media accounts, and how it contrasted with her husband’s officially declared income. In addition to Factcheck.kg, the sites targeted by attacks included those of Kloop, Kaktus Media, vb.kg, knews.kg, Economist.kg and others that reposted the report. IT experts assessed the attacks as an “unprecedently harsh”.

A number of media watchdogs and experts denounced the actions taken against media following the publication of the investigative report about corruption. For example, OSCE Representative on Freedom of the Media Harlem Désir stated: “Disproportionate damages in civil defamation cases have a chilling effect on media freedom. It may bring about the closure of outlets and endanger media pluralism. I call for respect for journalists who reported on this case, including investigative journalists, who play a key role in press freedom and democracy.” The Media Development Centre, a Kyrgyzstani NGO, expressed alarm at “open pressure on media through the court system” and warned that this may cause “unprecedented damage” to the “mission of the media” and result in a “serious rollback from democracy”.

In a joint statement, Civil Rights Defenders, the Committee to Protect Journalists, the Norwegian Helsinki Committee, the Helsinki Foundation for Human Rights and IPHR called on the Kyrgyzstani authorities to “take all steps provided under national law to guarantee protection to journalists, lawyers and activists” who have exposed and called for investigation into the allegations of high-level government corruption. The NGOs concluded that, although the Kyrgyzstani authorities announced launching a preliminary probe into these allegations and briefly interrogated the key figure profiled in the November 2019 report (Raimbek Matraimov), “their subsequent actions raise serious concerns about the Kyrgyz government’s compliance with its commitments to freedom of expression and its declared intent to fight corruption”.

In addition to representatives of civil society and the international community, the leader of the Ata Meken party parliamentary fraction (opposition) and a member of the Respublika–Ata Zhurt fraction (part of the parliamentary majority) also expressed concern about the actions against media. President Jeenbekov commented on the defamation lawsuits against the leading independent media outlets during his annual press conference on 25th December 2019, saying that he thought the damages sought by the former top customs official were “too high”.

Other defamation lawsuits against media

The case against the three leading independent media outlets described above was not the only case where people in power sought huge damages from media because of articles considered defamatory. During the period covered by this update, local courts ruled in favour of the plaintiffs in several such cases, thereby delivering serious blows to the media outlets affected and sending a warning to other media outlets:

• In two separate cases, the Oktyabrsky District Court in Bishkek ordered the Asia News outlet to publish refutations and pay 1 million Som (some 13 000 EUR) in compensation to high-level government officials because of articles found to have discredited these officials. Minister of Interior Kashkar Dzhunushaliev sued the newspaper because of information it had published about, among others, staff problems within the ministry he heads. Vice Prime Minister Jenish Razakov again took the newspaper to court because of an article that alleged that he had ties to the Tajikistani security services, an allegation that prompted members of parliament to request the national security services to conduct an investigation into the issue. The two government officials had requested even larger damages than those awarded by the court: 5 million and 10 million Som (some 65 000 and 130 000 EUR), respectively.
• On 17th December 2019, the Supreme Court upheld a lower level court decision ordering the opposition Achyk Sayasat newspaper to pay 300 000 Som (some 4000 EUR) to member of parliament Kozhobek Ryspaev because of an article found to have defamed him. The article in question called Ryspaev a “chameleon”, saying that “he moves from one party to another”. This referred to the fact that Ryspaev was a member of the Ar-Namys party when he was first elected to parliament in 2010, but represented the Social Democratic Party of Kyrgyzstan when he was re-elected as a deputy in 2015. The chief editor of Achyk Sayasat said that the newspaper does not have sufficient resources to pay the damages and most likely will have to close down.

In other cases, courts found in favour of the plaintiffs in defamation lawsuits brought against media outlets but awarded significantly smaller damages than those requested by the plaintiffs:

• The ex-speaker of parliament, Akhmatbek Keldybekov sued the Kyrgyztoday outlet because of articles presenting him as a defendant in a corruption case. He requested one million Som (close to 13 000 EUR) in compensation for alleged moral damages. In a decision issued on 28th October 2019, Bishkek’s Pervomaisky District Court agreed with the plaintiff’s position and ordered the internet portal to delete the articles in question, provide a rebuttal and pay compensation to Keldybekov. However, the court reduced the amount of damages to 30 000 Som (some 400 EUR). Kyrgyztoday argued that it had only reported facts: that Keldybekov had been charged with corruption and arrested on these charges.
• In another case, in November 2019, Bishkek’s Oktyabrsky District Court approved former Ministry of Interior official Bakyt Matmusaev’s claim for damages in relation to Asia News because of articles he considered slanderous. However, instead of the 10 million Som (close to 130 000 EUR) Matmusaev had requested, the court awarded only 15 000 Som (about 200 EUR).

Media self-regulatory body issues decisions

The Media Complaints Commission, a media self-regulatory body composed partly of journalists and partly of representatives of public and other organisations, has recently played an increasing role in settling conflicts involving journalists before these cases reach the court system. The Commission reviews complaints based on the Ethical Code of Journalists and issues decisions that are recommendatory in nature and do not have legal force. During the period covered by this report, the Commission dealt with several complaints:

• Former Member of Parliament Sharshenbek Abdykerimov turned to the Commission with a request to assess an article published in the Jany Ordo newspaper. The Commission found that the article in question violated three articles of the Ethical Code of Journalists, including provisions that oblige journalists to distinguish between facts, assumptions and opinions, as well as to ensure balanced coverage of the views of those subject to criticism in articles. The Commission asked the newspaper to provide a rebuttal and publish a new article, reflecting also the views of the applicant. The chief editor of Jany Ordo said that the newspaper was ready to publish Abdykerimov’s views.
• In another decision issued in October 2019, the Media Complaints Commission held that several local newspapers, including Standard, Belyi Parus, Vecherniy Bishkek and Delo № had violated several provisions of the Ethical Code of Journalists when publishing similar articles about former Member of Parliament Ravshan Jeenbekov. These articles suggested that Jeenbekov was working for the US security services and was planning a coup d’état. The Commission issued a public reprimand in relation to Delo №, arguing that it had systematically violated journalist ethics, while warning the other three newspapers. Vecherniy Bishkek announced its readiness to publish an article reflecting Jeenbekov’s views.

Criminal case against Facebook administrator

In a case that gave rise to serious free speech concerns, a blogger was facing charges of inciting inter-regional discord. On 24th November 2019, officials from the National Security Committee detained Aftandil Zhorobekov, who administers the Facebook page Bespredel KG (“Lawlessness in Kyrgyzstan”), on these charges. A local court initially sanctioned his pre-trial detention for two months; however, on 5th December he was transferred to house arrest pending trial.

According to a press release issued by the National Security Committee, Zhorobekov had disseminated “knowingly false and provocative information discrediting the current authorities”. The press release also stated that by calling for “disobedience” and “mass protests” in his posts, he had “divided” the users of his Facebook page into “opposing groups” and “provoked mutual insulting comments”, which “ultimately” incited “feelings of hatred” and “inter-regional discord”. The National Security Committee later shared screenshots from the Facebook page Zhorobekov administers to demonstrate the basis for the charges. These included posts made by Zhorobekov about political figures in the country, as well as comments made by users of his site, some of which were offensive and hostile in nature.

If convicted on the charges of inciting inter-regional discord (under article 313, part 2 of the Criminal Code), Zhorobekov could be sentenced to up to 10 years in prison.

Experts from the Kyrgyzstani Civil Society Initiative for Internet Policies called the criminal charges and arrest of Zhorobekov “unacceptable” and described the law enforcement actions against him as “censorship” and “intimidation”. The experts concluded that the blogger, in fact, is being held to blame for the actions of other individuals who commented under his posts and expressed their own thoughts and conclusions unrelated to his publications. They emphasised that social media hosts should only be held responsible for the content of their own posts, not for the comments by site visitors. The experts also pointed out that the Criminal Code provision on inciting inter-regional and other forms of discord, under which Zhorobekov was charged, does not prohibit criticism of the authorities. They noted that such an interpretation of this provision violates the constitution and international human rights treaties ratified by Kyrgyzstan.

Human Rights Watch also issued a statement on the case, calling on the Kyrgyzstani authorities to drop the charges against Zhorobekov. The organisation said: “His arrest sets a dangerous precedent that anyone could be held criminally liable for criticising public figures, or for the offending speech of others.”

Following Zhorobekov’s arrest, his sister Chynara Temirova published video appeals to the president and the UN Secretary General  decrying the actions taken against him as an attack on freedom of expression. A campaign in support of the blogger was also launched on social media.

Following his visit to Kyrgyzstan in December 2019, the UN Special Rapporteur on minority issues voiced concerns about misuse of the Criminal Code provision on inciting inter-regional and other discord to stifle free speech in the country (see more below).

UN expert voices concerns about misuse of incitement charges to suppress free speech

The UN Special Rapporteur on minority issues, Fernand de Varennes, visited Kyrgyzstan from 6^th to 17th December 2019 to evaluate the current situation of minorities in the country. At the end of his visit, he, among others, expressed concern about “hostility against human rights defenders and journalists who monitor and report on the situation of minorities in the country, and the use of legal provisions on incitement to hatred and extremism to suppress and criminalise their work.” He called on the government to “take resolute action to protect civil society organisations, human rights defenders and journalists, including those working on the rights of minorities” and to “create a safe and enabling environment for them to carry out their important and legitimate work without fear of reprisals”.

The Special Rapporteur noted that the Criminal Code provision that prohibits “inciting national, racial, religious or inter-regional hostility” (article 313 of the current Criminal Code) has been used by state authorities “to suppress dissident minority voices and criticism against Government policies”. As an example, he mentioned the case of journalist Ulugbek Babakulov. As covered earlier on the Monitor, Babakulov was charged with inciting inter-ethnic hatred in 2017 after drawing attention to aggressive nationalism against ethnic Uzbeks on social media. He subsequently fled the country.

The Special Rapporteur’s final report about his visit to Kyrgyzstan will be presented to the UN Human Rights Council in March 2021.

Freedom of association

Threats against human rights defenders

Human rights lawyer and director of the Bishkek-based law firm Precedent, Nurbek Toktakunov reported receiving threats after he called on the authorities to investigate the allegations made in the journalist investigation on high-level government corruption (see more under Freedom of Expression) and publicly criticised the way this investigation was being handled. He was first threatened on social media, and later over the phone. According to Toktakunov, on 18th December 2019, when he was on his way to a rally to protest against corruption and demand free speech (see Freedom of Assembly), he received a phone call from an unknown man, who told him that “they had already warned him”, that ”it’s enough with rallies” and that he should “calm down”. He also said that officials from the National Security Committee sympathising with him had warned him to leave the country to avoid retaliatory measures. Toktakunov filed a complaint with the police about the threats received and as of the end of 2019, a preliminary investigation into the complaint was under way.

Human rights defender Dinara Oshurakhunova, another active participant in the rallies against corruption and for free speech (see Freedom of Assembly), also reported receiving threats. She wrote on Twitter that an unknown man called her ahead of the 18th December rally and warned her that “we will strike” if she “makes a fuss”. When she asked who he was, the caller said “what’s the difference?” and hung up. When the activist tried calling back, she was informed that no such number exists.

In a joint statement issued on 20th December 2019, Civil Rights Defenders, the Committee to Protect Journalists, the Norwegian Helsinki Committee, the Helsinki Foundation for Human Rights and IPHR expressed concern about these threats against human rights defenders. The NGOs called on the Kyrgyzstani authorities to ensure their protection. (See also the section on Freedom of Expression).

Renewed call for the adoption of a Foreign Agents law

At a press conference held on 12th December 2019, leaders of the radical Kirk Choro movement called for the adoption of a so-called Foreign Agents law on NGOs in Kyrgyzstan. The leaders stressed what they considered to be the need to restrict the activities of NGOs deemed to be foreign agents based on their sources of funding, claiming, among others, that such organisations are “often engaged in prevocative activities” in the country. As covered before on the Monitor, in May 2016, Kyrgyzstan’s parliament rejected a draft Foreign Agents law on the third reading. That draft law, which drew heavily on the corresponding Russian law, required NGOs to adopt the label of “foreign agents” if they receive foreign funding and engage in broadly defined “political activities”. It also granted authorities new, broad powers to interfere in the internal affairs of NGOs. The rejection of the draft law was a victory for civil society, which had campaigned against it since it was first introduced.

On 30th December 2019, a new draft law on amendments to legislation regulating the activities of NGOs in Kyrgyzstan was published on the official parliamentary website for discussion. This draft law, initiated by Member of Parliament Baktybek Rayymkulov (from the fraction of the Respublika–Ata Zhurt party, which is part of the current coalition government), proposed new reporting obligations for NGOs, in particular with respect to their finances.

While the new draft law does not contain such draconian and stigmatising provisions as the previous Foreign Agents draft law, civil society representatives expressed concern that it would further increase the reporting burden for NGOs and that it represents another attempt to step up control of NGOs. Lawyers from the Adilet Legal Clinic, who analysed the draft law, concluded that there is a risk that the proposed new reporting obligations may be used to “put pressure on the non-commercial sector because of its active position in public life”. The experts stressed that this risk is enhanced because of the lack of transparency and the political dependence of state institutions.

Life sentence against human rights defender upheld again

On 2nd December 2019, the Supreme Court reviewed an appeal filed by the lawyers of human rights defender Azimjan Askarov, who continues to serve a life sentence for his alleged role in the inter-ethnic violence that took place in southern Kyrgyzstan in June 2010. His lawyers had filed an appeal against the ruling of Chui Regional Court from 30th June 2019, which rejected the defender’s request for a reconsideration of his sentence based on the provisions of the new Criminal Code that entered into force in Kyrgyzstan in January 2019.

Ahead of the review, IPHR and six other European and international NGOs sent a joint letter to the Supreme Court, urging its judges to “demonstrate their impartiality and honest commitment to the rule of law” when considering the case and to ensure that “their ruling complies with” the March 2016 decision of the UN Human Rights Committee. In that decision, the Human Rights Committee found that the Kyrgyzstani state party had violated Askarov’s rights under the International Covenant for Civil and Political Rights (ICCPR) and called on the state party to immediately release him and quash his conviction.

After reviewing the appeal, the Supreme Court partially affirmed the requests of Askarov’s lawyers and reduced the sentence imposed under some of the Criminal Code provisions under which he was convicted. However, at the same time, it upheld the life sentence handed to the defender on charges of “complicity in murder”. According to Askarov’s lawyer, Valerian Vakhitov, the Supreme Court failed to take into consideration the views of the UN Human Rights Committee. He also said that, on these grounds, his client plans to file a lawsuit against the government for non-compliance with its international human rights obligations.

Following his visit to Kyrgyzstan in December 2019, UN Special Rapporteur on minority issues Fernand de Varennes reminded the Kyrgyzstani government “of its obligation to fulfill the UN Human Rights Committee’s observations on the need to release” Azimjan Askarov, noting that Askarov is “a member of the Uzbek minority who investigated and wrote on police brutality during the 2010 events”.

Freedom of assembly

Rallies to protest against corruption and demand free speech

In connection with the media investigation that disclosed large-scale corruption within Kyrgyzstan’s Customs Service (see more under Freedom of Expression), two peaceful mass protests were held at Bishkek’s Ala Too Square on 26th November and 18th December 2019, respectively. The rally participants called for adequate measures to investigate the corruption allegations, as well as to ensure the protection of freedom of expression, given the punitive defamation lawsuits brought against media by a key figure featured in the corruption investigation (see more under Freedom of Expression).

Each of the two rallies was estimated to have gathered around 1000 participants, including civil society activists, human rights defenders, journalists, public figures and others. The protests took place without any direct interference by law enforcement authorities. A local police chief who appeared at the rally on 25th November first that the protest was “unlawful” because of the court-imposed ban on holding assemblies in the centre of the capital from 13th November to 1st December 2019 (see more below). However, following a discussion with some of the participants, he stepped back, saying that “people have the right to speak up”.

Dozens of new peaceful assemblies

During the period covered by this update, dozens of other peaceful assemblies were also held in Kyrgyzstan on a range of social, economic and political issues. Among these assemblies were, for example, a protest by trade union representatives against amendments to the Trade Union Law passed by the parliament, a protest by market traders against the proposed closure of the Bereket market in Bishkek and a flash mob against air pollution in the capital.

New blanket bans on holding assemblies in the capital

The reporting period saw new court-imposed blanket bans on holding assemblies in the centre of the capital, based on vague arguments. As covered before, this practice runs contrary to national and international standards protecting the right to freedom of peaceful assembly.

On 13th November 2019, the Pervomaisky District Court in Bishkek upheld a decision by the local administration in the same district of the city to restrict the conduct of assemblies in the centre of Bishkek from 13th November to 1st December. According to the decision, assemblies – with the exception of state and municipal events - were only allowed in one particular square (located at the intersection of Shcherbakova and Botaliev streets) during this period. Thus, assemblies were banned elsewhere in the centre, including at Ala-Too Square, the city’s main square. This measure was justified with reference to the fact that two football World Cup qualification games, as well as visits by Kazakhstan’s president and the heads of states of the Collective Security Treaty Organization (a Russia-led military alliance of seven post-Soviet states) were planned to take place in Bishkek during the period in question. The mayor’s office also argued that because of “recent developments in the world, in particular increasing expressions of religious extremism”, the conduct of large, peaceful assemblies in the central square “disturbs” citizens who do not participate in these events and gives rise to “negative feelings” and “concerns about personal safety”.

On 5th December 2019, the same court prohibited the holding of assemblies, excluding official events, in the centre of Bishkek from 5th December 2019 to 1st January 2020, based on a request from the local administration of the corresponding district of the capital. This decision was justified with the argument that there would be “many people” in public areas during those days and that New Year decorations would be installed in public squares.

As described above, in spite of these court-imposed blanket bans, large anti-corruption rallies were still held at Ala-Too Square during the periods the bans applied.