Responding to violence or threats of violence
The proposed recommendations are designed to assist legal practitioners and defence lawyers who protect the rights and legitimate interests of persons affected by violence or the threat of violence due to their religious beliefs, and are aimed at enhancing the role of a legal practitioner / defence lawyer in contributing to the more effective investigation of such cases, ensuring the inevitability of punishment of perpetrators, restoration of violated rights of a victim, compensation for material damage and moral harm.
- 1. Interviewing a victim and collecting primary data
- 2. Filing a complaint with law enforcement agencies
- 3. Intervening as a representative of the victim
- 4. Taking measures to ensure the safety of the victim
- 5. Participation in criminal and (or) offence proceedings
- 6. Appeal against actions (inactions) and decisions affecting the interests of the victim
- 7. Compensation for property damage and (or) moral harm
1. Interviewing a victim and collecting primary data
When a person who has suffered violence or the threat of violence seeks assistance, a legal practitioner / defence lawyer should carefully listen to his/her explanations and, if necessary, ask clarifying questions in order to obtain detailed information about what happened to him/her. This will enable to reveal the religious motive and identify the elements of a wrongful act that can be qualified as a crime in accordance with the Criminal Code (CC) or an offense in accordance with the Code of Offences (CoO), and to outline the range of initial and urgent actions to be taken for the protection of the interests of the victim.
When it comes to the crime “Incitement of religious hatred (enmity) with the use or threat of violence that does not endanger life and health” (Article 330 of the CC), the “religious” component is the main feature of the objective side of the crime.
The following crimes can be distinguished, in which a religious motive is regarded as an aggravating circumstance: murder on the ground of religious hatred (enmity) (sub-paragraph 11, paragraph 2, Article 122 of the CC); infliction of serious harm to health on the grounds of religious hatred (enmity) (sub-paragraph 6, paragraph 2, Article 130 of the CC); torment on the ground of religious hatred or enmity (sub-paragraph 3, paragraph 3, Article 138 of the CC).
Some elements of crimes do not contain a “religious” component; however, they can be qualified as crimes involving violence or the threat of violence on the ground of religion, based on the subjective side of the criminal act. Depending on the object of the attack and its consequences, these are: crimes against life (Article 122), Article 123, Article 127, Article 128, Article 129 of the CC); crimes against health (Article 130, Article 131, Article 134, Article 135, Article 136, Article 137, Article 138, Article 139 of the CC); crimes against sexual inviolability and sexual freedom (Article 154, Article 155, Article 156 of the CC); crimes against the spiritual and moral health of a person (Article 157, Article 158, Article 159 of the CC); crimes against personal freedom (Article 165, Article 166, Article 169 of the CC); crimes against family relations and the interests of children (Article 172, Article 173, Article 174, Article 177 of the CC). This group also includes crimes against public safety and public order (Article 280, Article 287 of the CC).
Pursuant to Article 74 of the CC, the commission of a crime on the grounds of religious hatred (enmity) constitutes an aggravating circumstance.
Similarly, in the crime “Obstruction of the right to freedom of conscience and religion” (Article 141 of the CoO), the “religious” component is the main feature of the objective side of the offence. Some elements of crimes do not contain a “religious” component; however, they can be qualified as crimes involving violence or the threat of violence on the ground of religion, based on the subjective side of the wrongful act. Depending on the object of the attack and its consequences, these are: offenses against health (Article 56, Article 57 of the CoO), against the interests of minors and family relations (Article 70 of the CoO), against the management of public order (Article 126 of the CoO).
2. Filing a complaint with law enforcement agencies
A legal practitioner / defence lawyer should explain to a victim his/her right to apply to law enforcement agencies with regard to violence or the threat of violence, the goals and general rules of pre-trial proceedings and criminal proceedings, or the procedure for offense proceedings and handling of cases of offenses. The victim must understand the importance of timely filing a complaint, primarily, in order to stop violence against him/her or his/her close relatives, or spouse, if it continues. The victim must understand that filing a complaint is also necessary in order to initiate a criminal or offence investigation in good time, to identify and hold the perpetrators liable, and to take measures with a view to compensate for the material damage and moral harm caused to the victim.
If necessary, a legal practitioner / defence lawyer should assist the victim in drawing up a complaint, its referral at the place of commission of the unlawful act to the body of pre-trial proceedings in accordance with the jurisdiction defined by Article 159 of the Criminal Procedure Code (CPC) or to the authorised body or prosecutorial authorities empowered to draw up a report on the offense and initiate offence proceedings.
The complaint must contain a description of the event of the crime or offense, including the place and time of its commission, information about witnesses, if any (full name, where they were at the time of the offence, what they saw or heard, what they can confirm); information on the person who used violence or threatened to use violence, information on the consequences that followed, and a request to initiate pre-trial or criminal proceedings and to hold the perpetrator liable.
A complaint of a crime must be received by the body of pre-trial proceedings and registered in the Unified Register of Crimes. An applicant must be issued a notification slip - a document confirming the registration in the register log of the information about complaints received on crimes, with an indication of the person who received the complaint, the time of its registration and the registration number (it must have a QR code on it), which can be used by the applicant at any time in the future to check the status of his/her complaint in online mode. By scanning the QR code with a mobile device, s/he will get the latest information about the complaint. Registration of offenses is carried out by officials of the authorised body, the prosecutor in the Automated Information System (AIS) of the Unified Register of Offenses.
3. Intervening as a representative of the victim
With the consent of the victim of violence or the threat of violence due to his/her religious beliefs, a legal practitioner / defence lawyer may intervene as a representative of the victim, in accordance with Article 42 of the CPC, or a representative of the affected person (Article 500 of the CoO), which will significantly strengthen and expand the possibility of protecting the legitimate interests of the victim in criminal or offence proceedings. For this purpose, a warrant certifying the defence lawyer’s authority to provide legal assistance or a power of attorney to represent the trustee should be submitted to the body conducting pre-trial proceedings, or the body authorised to initiate and consider cases of offenses.
As a representative of the victim, a legal practitioner / defence lawyer shall have the same procedural rights and obligations under Article 40 of the CPC as a victim of a crime. The defence counsel and the representative of the person who was affected by an offense shall have the same rights under Article 501 of the CoO as the affected person. A defence lawyer also enjoys the rights provided for in Article 25 of the Law “On the Bar Association of the Kyrgyz Republic and Defence lawyer’s activity”.
4. Taking measures to ensure the safety of the victim
If there is a threat of violence or another act prohibited by criminal law against the victim, his/her close relatives, spouse, an application for taking security measures in accordance with Article 76 of the CPC must be submitted without delay to the body in charge of the case.
This body must consider the application for taking security measures within 24 hours from the moment of its receipt, and immediately notify the applicant of the decision taken, by sending him/her a copy of the relevant decision. The applicant has the right to appeal to the prosecutor or to the court the refusal to satisfy the motion for taking measures of his/her security. A refusal to take security measures shall not preclude re-submission of an application if circumstances have arisen that are not reflected in the previously submitted application.
In order to ensure the safety of the victim, his/her close relatives, spouse, the measures provided for in Article 77 of the CPC, as well as other measures provided for in Article 6 of the Law “On the Protection of the Rights of Participants in Criminal Proceedings” may be taken.
Irrespective of the adoption of security measures, an authorised official of the body of pre-trial proceedings shall, if there are grounds for this, initiate pre-trial proceedings in response to a detected threat against the victim.
5. Participation in criminal and (or) offence proceedings
The registration of a report of violence or the threat of violence constitutes grounds for initiating pre-trial proceedings in a criminal or offence cases.
The legal practitioner / defence lawyer should contribute to the effective and full implementation of the right of the victim (affected person) to participate in the criminal prosecution of the accused.
Within the framework of criminal proceedings, the victim and his/her representative can present evidence, submit motions and challenges, including a motion for the appointment of a comprehensive psychological and psychiatric examination, participate in investigative actions carried out at his/her request, get acquainted with the protocols of investigative actions carried out with the participation of the victim, receive their copies and submit comments thereon, get acquainted with all the materials of the case after the completion of pre-trial proceedings and receive copies thereof, participate in court, speak in court pleadings, support the prosecution, get acquainted with a protocol of the court hearing and submit comments thereon, appeal against court decisions, be informed of complaints and submissions lodged on the case and file objections against them, participate in judicial consideration of complaints and submissions.
Evidence in a criminal case is information obtained in accordance with the procedure established by law, on the basis of which the body of inquiry, investigator, prosecutor or the court determines the existence or absence of circumstances relevant to the case. The sources of evidence are:
1) testimony of the suspect, accused, victim, witness;
2) conclusions and testimony of an expert;
3) testimony of a specialist;
4) material evidence;
5) protocols of special investigative, investigative and judicial actions;
6) other documents.
As part of the offence proceedings, the victim and his/her representative have the right to get acquainted with all the materials of the case, present evidence, submit motions and challenges, appeal against the report of the offense and the decision on the offense.
Evidence in a case of an offense is any factual data on the basis of which the authorised body in charge of the case establishes the existence or absence of an offense, the culpability of an individual held liable for an offense, as well as other circumstances relevant to the proper resolution of the offence case. These data are established by:
1) a report of an offense drawn up on paper or in electronic form, as well as a resolution on paper or in an electronic form certified by an electronic signature;
2) explanations of the person held liable for the offense of the victim, witnesses;
3) explanations of a specialist;
4) expert opinion;
5) other documents;
6) material evidence;
7) data recorded by technical means equipped with photo and video recording functions (video cameras, video recorders, video cameras of mobile and other devices).
The court, the prosecutor, the investigator and the body of inquiry shall, in accordance with Article 13 of the CPC, ensure the protection of the rights and freedoms of the victim, create conditions for their implementation, and take timely measures to satisfy his/her legal claims.
6. Appeal against actions (inactions) and decisions affecting the interests of the victim
The victim and his/her representative have the right to appeal against any actions (inactions) and decisions of the body of pre-trial proceedings, the prosecutor and the court, if these actions (inactions) or decision affect their interests. Complaints may be submitted to the state body or official authorised by law to consider and make decisions on such complaints, or to the prosecutor or to the court.
Thus, complaints may be submitted against the refusal to accept and register a report of a crime or an offence, the refusal to recognise victims, the refusal to satisfy motions for the appointment of forensic and other types of examinations, for the adoption of security measures, for recusal, red tape in the investigation of a criminal case, other unlawful and illegal actions of the body of pre-trial proceedings. Chapter 16 of the CPC establishes the rules for the submission, time limits and procedure for consideration of complaints of the victim against the actions and decisions of state bodies and officials carrying conducting criminal proceedings. The procedure for appealing against court decisions on appeal is determined by Chapter 46 of the CPC, appealing against court decisions in cassation - Chapter 51 of the CPC.
The decision of the authorised body on the case of an offense may be appealed to a district (city) court. A court decision adopted in respect of offenses under the direct jurisdiction of the court, provided for in Article 454 of this Code, may be appealed on appeal to regional and equivalent courts. The decision of the judge of the district (city) court, issued on an appeal against the decision of an authorised body relating to an offense, may be appealed by the victim and his/her representative under the appellate procedure. Proceedings in the court of appeal shall be carried out according to the rules provided for in Chapter 56 of the CoO.
7. Compensation for property damage and (or) moral harm
In order to obtain compensation for property damage and (or) moral harm caused by a crime, the victim should file a claim in the form and content established by Article 134 of the Civil Procedure Code. A claim for compensation may be filed outside the framework of a criminal case - in civil proceedings.
In case of impossibility to compensate for material damage and (or) moral harm at the expense of a suspect, accused or convicted person, compensation for material damage and (or) moral harm to a victim shall be made at the expense of a specialised fund in accordance with Article 40 of the CPC.
In case of evasion by the perpetrator of an offense from voluntary compensation for the harm caused, such compensation shall be pursued in civil proceedings.