Responding to violence or threats of violence

The recommendations proposed are designed to help practicing lawyers and jurists protecting the rights and legitimate interests of persons affected by violence or threat of its use in connection with their religious beliefs and aimed at enhancing the role of a lawyer / jurists in facilitating the investigation of such cases and ensuring the inevitability of punishment of perpetrators, restoration of violated rights of victims, compensation for material damage and compensation for moral harm.

Step 1. Interviewing the victim and collecting primary data

When person suffered from violence or the threat of violence seeking for lawyer / jurists, they should carefully listen to his/her explanations and, if necessary, ask clarifying questions to get detailed information about what happened to him/her. This will enable to reveal the religious motives and determine the signs of criminal offense that can be qualified as a crime in accordance with the Criminal Code (CC) or misdemeanour according to the Code of Misdemeanour (CoM), and to indicate the range of initial and urgent actions to be taken in protecting the interests of the victim.

The elements of crime “Incitement of religious hatred (discord) using violence not dangerous to life and health, or the threat of its use” (Article 313 of CC), the “religious” component is the main sign of objective side of the crime. There are crimes associated with the infliction of violence or the threat of its use as a result of discrimination based on religion (Article 143, Article 381, Article 383, and Article 386 of CC). Some structures are structured without considering the “religious” component, but they can be qualified as crimes related to violence or the threat of its use based on religion and on subjective side of the criminal act. Depending on the subject of offence and its consequences, these are crimes against life (Article 130 part 2 paragraph 10, Article 136 of CC), against health (Article 138 part 2 paragraph 9, Article 139, Article 144, Article 145 of CC), against sexual integrity and sexual freedom (Article 161, Article 162 of CC), against personal freedom (Article 170, Article 172 of CC). In accordance with Article 75 of CC, the commission of crime motivated by religious hatred (discord) is an aggravating circumstance.

The element of misdemeanour “Obstruction of the right to freedom of conscience and religion” of the Code of Misdemeanour of the Kyrgyz Republic (Article 84 of CoM), “religious” component is the main sign of objective side of misdemeanour. Some compositions are structured without considering the “religious” component, but they can be qualified as misdemeanours associated with violence or the threat of its use based on religion and subjective side of the criminal act. Depending on the subject of offence and its consequences, these are misdemeanours against health (Article 65, Article 66 of CoM), against interests of minors and tenor of family relationships (Article 75 of CoM), against public order (Article 119 CoM). In accordance with article Article 53 CoM, the commission of crime and misdemeanour motivated by religious hatred (discord) is an aggravating circumstance.

Step 2. Filing a complaint to law enforcement agencies

The lawyer /jurists have to explain the victim his/her rights how to file c complaint to law enforcement agencies or to the court in connection with violence or the threat of its use, about the purposes and general rules of pre-trial proceedings and trial. The victim must understand the importance of timely submitting a complaint in order to prevent violence or the threat of its use, and if they continue, to conduct an effective investigation, identify the perpetrators and bring them to justice, compensation for material damage and compensation for moral harm.

If necessary, the victim should be assisted in drafting the complaint, his referral at the place of unlawful act to the body of pre-trial proceedings in accordance with the investigating jurisdiction established by Article 153 of the CPC and Article 503 of the CPC, or to the court in case of private prosecution.

The complaint must contain the description of crime event or misdemeanour indicating the place and time of its commission, information about witnesses, if any (full name, where they were at the time of crime, what did they see, hear and what they may confirm); information about person who used violence and threatened to use it, data on consequences that followed, and request to initiate the pre-trial proceedings and bring the perpetrator to justice.

The complaint must be received by the body of pre-trial proceedings and be registered in the Unified register of crimes and misdemeanours. The applicant must be issued a notice coupon is the document on registration in information log of complaints or communications received on crime and (or) misdemeanour, indicating the person who accepted the complaint or communication, time of its registration and registration number (it must have a QR code), according to which the author of complaint or communication can track the status and review progress of his/her complaint in the future.

Step 3. Intervening as representative of the victim

With the consent of victim, a lawyer / jurist can intervene as representative of the victim (private prosecutor), which will significantly strengthen and expand the possibilities to protect the legitimate interests of the victim (private prosecutor) in criminal proceedings and (or) misdemeanour cases. To do this, there is a need to submit a warrant order certifying the lawyer’s powers to the body of pre-trial proceedings or to the court in order provide legal assistance, or powers of attorney to represent the principal.

As legal representative of the victim (private prosecutor), the lawyer / jurist has the same procedural rights and obligations provided for in Article 41 of the CPC as the victim (private prosecutor), and whereas the lawyer enjoys as well the rights provided for in Article 25 of the Law “On advocacy of the Kyrgyz Republic and the advocacy activity”.

Step 4. Effective documenting the consequences of violence or the threat of its use

Measures must be taken for timely and complete documenting the physical and mental consequences of violence or the threat of its use. To do this, the lawyer / jurist should immediately refer the victim, and if possible personally accompany him/her to the health organization and require a medical forensic examination in accordance with the order of the Ministry of Health of the Kyrgyz Republic No. 680 as of December 7, 2015 “On approving the practical guide for effective documentation of violence, torture” and other cruel, inhuman or degrading treatment or punishment in the Kyrgyz Republic.”

The examination results should be recorded in a special Medical Examination Form No. 003-3/u. The health worker performing the examination has to immediately, after registration and signing, issue a copy of the Form to the victim and inform the territorial internal affairs agency of the fact of violence by telephone message, followed by a written notice within 24 hours.

Step 5. Taking measures to ensure safety of the victim

Should there be any information about the threat of unlawful influence against the victim, his close relatives, husband (wife) through the use of violence or another act prohibited by criminal law, it is necessary to immediately seek for safety measures in accordance with article 80 of the CPC to be taken by organs treating the case. The procedure for ensuring the personal safety of victims involved in criminal proceedings and their close relatives and husband (wife) is determined by the in accordance with article 6 of the Law “On the protection of the rights of witnesses, victims and other parties in criminal procedure”.

Regardless of safety measures taken, an authorized official of the body of pre-trial proceedings, if there are grounds for this, are obliged to initiate pre-trial proceedings in connection with the threat to the victim.

Step 6. Participation in criminal and (or) misdemeanour proceedings

Registration of complaint in connection with violence or the threat of its use serves as the ground to initiate the pre-trial proceedings in a criminal or misdemeanour case, on which the applicant is informed.

The lawyer / jurists should promote the effective and full implementation of the victim's right to involve in the criminal prosecution in regards the accused. In the frame of the realization of this right, the victim and his/her representative may submit evidences, petitions and challenges, including the request for a comprehensive psychological and psychiatric examination, participate in investigation activities conducted at their request, and familiarize themselves with the protocols of investigation activities conducted with the involvement of the aggrieved party and to receive their copies and submit comments on them, to get acknowledged with all case materials at the end of pre-trial proceedings and to receive their copies, to participate in court, to speak in judicial debates, support the charges, get acquainted with the minutes of the court session and provide comments on them, appeal the court decisions, be informed of the complaints brought into the case, representations and file objections against them, participate in judicial review of complaints and representations. In private prosecution cases, the victim shall have the right to bring forward and support the charges.

The evidences in the case can be the information obtained in the manner prescribed by law, based on which the inquiry body, investigator, prosecutor and court determine the presence or absence of circumstances relevant to the case. The sources of evidence are:

1) testimony of suspect, accused, victim and witness;

2) expert opinions and testimonies;

3) testimony of specialists;

4) material evidence;

5) protocols of special investigation, investigation and judicial actions;

6) other documents.

The authorized person from the body of pre-trial proceedings, prosecutor and court, in accordance with Article 13 of the CPC, are obliged ensure the protection of the rights of victim and establish conditions for their implementation and take timely measures to satisfy his/her legal requirements.

Step 7. Appealing actions (inaction) and decisions affecting the interests of the victim

The victim and his/her representative have the right to appeal any actions (inaction) and decisions of the body of pre-trial proceedings, prosecutor and court if these actions (inactions) or the decision affect their interests. Complaints shall be submitted to that State body or official, which according to law are authorized to review complaints and make decisions on them, and to prosecutor or court.

Therefore, it is possible to appeal against a refusal to accept and register complaint on crime or misdemeanour committed, and refusal in recognizing a person as victim, refusal to satisfy the appeal for assignment of forensic and other types of examinations, to take safety measures, to challenge to impose red tape in investigation of criminal or misdemeanour case, other unlawful and illegal actions of the body of pre-trial proceedings.

The rules of treatment, the deadlines and procedures for reviewing the complaints submitted by victim against actions and decisions of State bodies and officials involved in criminal proceedings are determined by Chapter 16 of the CPC. The procedure for lodging a complaint against court decisions on appeal is determined by Chapter 46 of the CPC, and appealing court decisions in cassation is determined by Chapter 51  of the CPC.

Step 8. Compensation for property damage and (or) moral harm

In order to compensate property damage and (or) moral harm caused by crime and (or) misdemeanour, the aggrieved party should file a claim in the form and content established by Article 134 of the Code of Civil Procedure, which will be considered by court simultaneously with the review of the criminal and misdemeanour case. A claim for compensation may be filed outside the frame of criminal or misdemeanour case in civil proceedings.

The aggrieved party shall have the right to file a petition to the investigation judge to seize the property in order to ensure compensation for material damage and (or) moral harm.

In case of impossibility to compensate material damage and (or) moral harm at the expense of suspect, accused and convicted person, compensation for material damage and (or) moral harm to the victim, it shall be covered from specialized fund in accordance with article 41 of the CPC.