The purpose of this report is to provide an overview of whistleblowing law in Kyrgyzstan.
I. Summary Of Findings
The word whistleblower is not used in the Kyrgyz society though there is a translation from Russian meaning “informator”-reporting person.
Whistleblowing is considered to be a negative action in Kyrgyz culture. Legislation particularly aimed at protecting whistleblowers is non-existent in Kyrgyzstan. However, mechanisms in relation to protection of information, witnesses and anti-corruptions measures, which indirectly relate to whistleblowers, can be found as follows:
- Witness Protection. The protection of witnesses does exist in the Law on Protection of Rights of Witnesses, Victims and Other Participants of Criminal Legal Proceedings, and other in other laws. Protection of witnesses, experts, victims and reporting persons has led to a new law dealing with these issues, adopted on 16 August 2006. Some authorities claim that there have already been cases applying this law, however, others say the opposite. There is no official statistics available to support the fact of the existence of an example of actual application of this law. Without any evidence of actual cases of witnesses or victims protection and without follow-up institutional and practical measures with this respect the actual effectiveness of the law cannot be fully assessed yet.
- Anti-corruptions measures in the private sector. The Criminal Code envisages responsibility for corruption in the private sector, which includes abuse of office or power, commercial bribery and so forth. There are, however, no specific regulations on private sector employees who report about these and other corruption offences. Private sector employees who report on corruption can ask for protection like any other witnesses.1
Anti-corruption measures in the public sector. Civil servants who report cases of corruption, graft, abuse of power, or abuse o resources are protected from recrimination or other negative consequences.2 In practice, internal reporting practices in the public sector are weak due to:
- Lack of professional full-time staff;
- Hotlines and contact phones for reporting corruption or harassment do exist in most ministries and agencies, but there is no regulation and special staff to serve them. According to independent monitoring of the State Strategy on Combating Corruption, hotlines are not effective, since citizens do not see any results of their work. Moreover, absence of attention to hotlines leads to a skeptical attitude toward whistleblowing mechanisms;3
- the internal reporting mechanism for public sector corruption has no separate funds. According to the government’s regulation, they have to be funded within the existing budget. So, it is an additional expenditure for the state bodies;4 and
- complaints received through the internal reporting mechanisms have no priority. There were 61 phone calls to the agency’s hotline, five of which were anonymous. Most of the complaints were about corruption in law enforcement agencies and courts. After transferring these complaints for investigation, usually they were all closed because of the absence of a criminal case.5
The above mechanisms are discussed in more detail below. This report also considers the laws of defamation and slander in Kyrgyzstan.
II. State Anti-Corruption Strategies
The President approved the State Anti-Corruption Strategy 2006-2010 on 21 June 2005. Until then there were several scattered documents, none of them specifically focusing on corruption. The State Anti-Corruption Strategy actions have been planned in four ways:
- prevention of corruption;
- public support;
- investigation of corruption crimes; and
- international cooperation.
The National Agency for the Prevention of Corruption (NAPC) has drafted a new Action Plan for 2008-2010 within the framework of the State Anti-Corruption Strategy. The monitoring of the existing Action Plan has been co-ordinated by the NAPC. Twice a year respective institutions need to report to the NAPC about the steps taken in order to implement the Strategy. Due to the unstable political situation and low interest in anti-corruption activities, initially only few ministries (the Ministry of Defence, the Ministry of Health) reported about the implementation of the strategy, but recently all the respective agencies reported. The NGOs have been involved in the assessment of the existing action plan, and in the drafting of the new plan.
The NAPC was established by the Decree of the President on 21 October 2005, and launched its actual activities in September 2006.
The NAPC’s roles is to develop anti-corruption draft laws and other regulations, prepare anti-corruption programmes and monitor their implementation, evaluates the efficiency of the anti-corruption measures and develop new methods for fighting corruption. A Memorandum on Cooperation in corruption prevention has been signed with mass media, NGOs, and public organisations. A Cooperation Memorandum in corruption prevention, detection, elimination, and prevention of causes and conditions conducive to corruption has also been signed with law-enforcement bodies of the Kyrgyz Republic.
There are altogether four law enforcement bodies involved in the fight against corruption: the Prosecutor General’s Office including all prosecution bodies, the Interior Ministry (the Police), the State Customs Committee, and the Financial Police and the State Committee for National Security
There is no one coordinating body that directs and supervises all anti-corruption investigations.
Limitations of the NAPC
The obstacles faced by the NAPC are as follows:
- Lack of credibility among politicians and investigative authorities;
- The NAPC does not effectively cooperate with law enforcement agencies nor with the Accounts Chamber and similar organisations. According to the information of the Prosecutor General’s Office so far no investigation has been initiated based on the information provided by NAPC.;
- Lack of understanding among agencies about the role of the NAPC ;
- Lack of actual authority to set anti-corruption policy priorities for other agencies. For example, it does not have sufficient authority over law enforcement agencies to set priorities in investigating and fighting corruption; and
- a lack of understanding among various agencies about the role of NAPC in preventing corruption in the Kyrgyz Republic: it lacks actual authority to set anti-corruption policy priorities for other agencies. For example, it does not have sufficient authority over law enforcement agencies to set priorities in investigating and fighting corruption.
These obstacles prevent the NAPC from having a legitimate and effective reach on anti-corruption measures in Kyrgyzstan.
The Criminal Code
The Criminal Procedure Code provides a legal basis for interception of telephone calls (Article 188 of the Criminal Procedure Code), but still does not envisage all relevant type of special investigative techniques and methods for detecting and investigating corruption, such as undercover operations, employment of agents provocateur, simulated bribery, access to electronic data, e.g. e-mail communication. Without these modern techniques it is often impossible to detect cases of serious corruption and to gather reliable evidence in order to prove it before court. But, the Kyrgyz authorities report that sufficient funds are available for the implementation of the witness protection programmes.
III. Strengthening Anti-Corruption Strategies and Freedom of Expression Protections – International Organisations and Treaties
The OECD has recommended Kyrgyzstan consider introducing an amendment to the Code of Criminal Procedure to ensure that extradition and mutual legal assistance to contribute to ensuring that effective international mutual legal assistance in investigation and prosecution of corruption cases. The legislation needs amendments to bring it into full compliance with international standards.
Kyrgyzstan has not adopted complete legislation to protect witnesses, experts, victims and whistleblowers. There are few items in the Criminal Code and in the Act of investigative activities and the fight with corruption but they do not provide effective protection. The draft designed to protect witnesses, experts and victims was introduced to the parliament in 2003. However, it was given back to a group at the National Security Service to work more on the project.6
Further, the Istanbul Anti-Corruption Action Plan (IAP) has recommended that:
- Kyrgyzstan improve its anti-corruption laws, reinforcing monitoring and working more closely with civil society;
- Ensure its its anti-corruption legislation is compliant with international standards;
- strengthen the prosecution of corruption-related crimes;
- give public institutions the resources they need to deliver and monitor the 2012 State Strategy on Anti-Corruption Policy; and
- adopt a law to protect witnesses, experts, victims and whistleblowers.
These recommendations are based on the fact Kyrgyzstan does not have effective legal provisions to protect whistleblowers in either the private or public sectors. The concept of a whistleblower is not well understood in the region, and is often confused with protection of witnesses and persons co-operating with law-enforcement authorities in criminal cases. Since corruption is generally a hidden offence, insiders hold principal knowledge. Efforts to introduce the concept and adequate tools to protect whistleblowers of corruption, including targeted awareness-raising and training campaigns, are needed.
Freedom of Expression
The International Covenant on Civil and Political Rights (ICCPR), a legally binding treaty which Kyrgyzstan ratified the ICCPR in 1994. Under the ICCPR, freedoms of opinion and expression are guaranteed. Freedom of expression is also guaranteed in various OSCE documents agreed to by Kyrgyzstan, such as the Final Document of the Copenhagen meeting of the human dimension of the OSCE, the Charter of Paris agreed in 1990, the final document of the 1994 Budapest CSCE Summit, and the Istanbul Summit Declaration.
Global recognition of the importance of freedom of expression is furthermore reflected in the three regional systems for the protection of human rights, the American Convention on Human Rights, the European Convention on Human Rights (ECHR), and the African Charter on Human and Peoples’ Rights, all of which guarantee the right to freedom of expression. While these treaties and judgments delivered by the various courts established to supervise their implementation are not directly binding on Kyrgyzstan, they are authoritative as to the nature and content of the freedom of expression guarantee found in the ICCPR and in the Kyrgyz Constitution.
IV. Media Law and Journalist Protections
The Kyrgyz Law on Mass Media (Mass Media Law) consists of six Chapters, dealing with matters such as registration of mass media organisations, suspension of media outlets, the right to information and journalists’ rights and duties. It also provides a number of restrictions on what may be published, such as insults to civil dignity or the publication of state secrets.
- Article 18 (Mass Media Law) deals with the principle of confidentiality of sources in relation to editors providing that an editor may be forced to divulge a source upon a court order;
- Article 5 (Journalists Law) contains a similar lists of rights, adding a right to publish anonymously;
- Article 9 (Journalists Law) elaborates on the right of a journalist to investigate, adding that “[n]o provision shall be made for confiscation or examination of the materials and documents of the journalist, received during journalistic investigation, but in a court order.”
- Article 13 (Journalists Law) State officials are individually liable for any act of censorship, hindrance of journalistic activities, unjustified refusal of accreditation, harassment of journalists, confiscation of journalistic materials and providing false or misleading information to a journalist;
- Article 14 (Journalists Law) requires that journalists “shall bear responsibility for [the] authenticity of the prepared and [disseminated] information and materials in keeping with the law”.
The UN has a number of concerns with regard to the content restrictions in the Mass Media Law. The concern is that most if not all of these restrictions repeat existing prohibitions under civil or criminal law, the prohibitions against publication of hate speech, pornography, defamation and materials that violate the right to privacy, for example. From a purely legal point of view, repeating these provisions in the Mass Media Law creates a highly confusing situation. Additionally, repeating the prohibitions sends a signal to the media that they are being singled out for special scrutiny, which is likely to have an illegitimate chilling effect on their right to freedom of expression. This concern is particularly valid given the extremely vague nature of many of the restrictions.
The OECD has also recommended improvement to Kyrgyz Media Law. They suggest that Government held information, which is not subject to disclosure, should be delineated as concretely as possible in the law (rather than in any internal documents, instructions and the like). The discretion of public officials as to what constitutes such information should be limited to the maximum extent feasible. The Law on Access to Information in the Jurisdiction of the State Authorities and Bodies of Local Self-Government of 28 December 2006 and the Law on Guarantees and Free Access to Information of 5 December 1997 stipulate that according to the principles of publicity, objectivity, timeliness, openness and reliability of information, every citizen is guaranteed the right of access to information, and the government must protect this right..
These legal acts also stipulate that restriction to access to and dissemination of information may only be imposed by the law on confidential information, as well as information containing state, commercial or official secret.
To limit the discretion of public officials as to what constitutes such information, the laws on Access to Information in the Jurisdiction of the State Authorities and Bodies of Local Self-Government and on Guarantees and Free Access to Information guarantee every citizen the right to appeal against the actions or omissions of state authorities, bodies of local self-government, public associations, enterprises, institutions, organisations and officials, infringing citizens’ right to information, to a superior official, Ombudsman (Akyikatchy) of the Kyrgyz Republic or in court. However, a number of international and national public organisations note that the information within the jurisdiction of state bodies and bodies of local self-government subject to public disclosure is in practice either totally inaccessible or hard to obtain. State authorities and bodies of local self-government often take discretional decisions as to what constitutes this sort of information, although the laws on Access to Information in the Jurisdiction of the State Authorities and Bodies of Local Self-Government and on Guarantees and Free Access to Information restrict the discretion of public officials to pass decisions concerning non-presentation of information.
OECD recommends Kyrgyzstan to ensure that the information provided in non-public complaints cannot be used for unjustified prosecutions for slander. It also recommends introducing additional measures to increase the protection of the citizens making complaints and proposals to the public bodies on issues of corruption.
The Ethics Code of Journalists was adopted in December of 2007. There were amendments in 2009 into the Ethics Code of Journalists of the Kyrgyz Republic. According to Ethics Code of Journalists (item #16) the journalists does not reveal his sources except cases envisaged in the legislation of Kyrgyzstan.
V. Government and Non-Governmental Organisations
|Citizens Against Corruptionfirstname.lastname@example.org|
|Public Association Journalistemail@example.com
|Future Without Corruption – Transparency International Kyrgyzstanfirstname.lastname@example.org|
|Centre for Right for Information MediaLaw||www.medialaw.kg|
|Anti-Corruption Site of the Kyrgyz Government||www.anticorr.gov.kg|
|State Service to Fight Economic Crime||www.finpol.kg|
2 The Law on Civil Service, Article 8, The Law on Fight Against Corruption, Article 9, The Law on Protection of rights of Witnesses, Victims and Other Participants of Criminal Legal proceedings of 16 August, 2006, N 170