PROGRESS IN STATUS OF ARRESTED FSNS BUT ADDITIONAL

C O N F I D E N T I A L SECTION 01 OF 02 BISHKEK 001224 SIPDIS STATE FOR SCA/CEN E.O. 12958: DECL: 11/23/2019 TAGS: KLIG PREL PINR ASEC PGOV KG SUBJECT: PROGRESS IN STATUS OF ARRESTED FSNS BUT ADDITIONAL STEPS REQUIRED REF: (A) BISHKEK 1200 (B) STATE 117704 (C) BISHKEK 1198 AND PREVIOUS Classified By: Ambassador Tatiana C. Gfoeller, for Reasons 1.4 (b) and (d). ¶1. (C) Summary: Over the weekend the SNB took steps to end the prosecution of our local employees for "collecting secret data." They closed the case and returned all items and papers seized in the arrest and subsequent searches. However, the provisions of law under which the actions were taken do not give complete confidence that the actions are irrevocable. We are seeking final closure of the case and believe that the Government, clearly motivated to maintain its relationship with the U.S., will follow through. End Summary. ¶2. (C) The Ambassador had lunch, at their invitation, with Foreign Minister Sarbayev and the head of the Central Agency for Development, Investment and Innovation, Maxim Bakiyev, on November 19. During the lunch, FM Sarbayev asked about dates for the Annual Bilateral Consultations. Ambassador responded that we did not yet have any information on dates, and that she really did not expect that we would be able to propose dates until the legal process against our local employees had been terminated. Sarbayev and Bakiyev both evinced surprise that the issue had not yet been resolved. Sarbayev noted that the Chairman of Kyrgyz National Security Service (SNB) had been ill for the past few days and wondered if that was the reason why expected action had not materialized. He said he would take action, and that we should expect to have word the next day. ¶3. (C) On Saturday November 21, the SNB informed Embassy officers and the arrested RSO FSNs, Emil Chodronov and Zamir Abdykasymov, that the FSNs had been "exempted from criminal liability" under Article 65 of the Kyrgyz Criminal Code. The criminal investigation by the SNB into the FSNs had been ceased. The FSNs had been charged under Article 302 for collecting official secret data for transfer to foreign organizations. The SNB returned to the FSNs all of their personal items and all of the papers which had been seized. The FSNs signed statements accepting the Article 65 determination, and, on the advice of counsel wrote above their signatures that they maintained their innocence. They have returned to full-time work at the Embassy and are no longer under house arrest. ¶4. (C) We met with the lawyers for our employees on November 23 to discuss the implications of the mechanism used by the Kyrgyz government to end the legal process. Article 65 of the Kyrgyz Criminal Code, under which our employees were released states that a person who committed a petty crime or a less severe crime for the first time may be exempted from criminal liability if the situation has changed and "the person is no longer socially dangerous" or the crime "has lost its socially dangerous nature." The lawyers were unsure whether use of this article provides full, permanent protection from prosecution. They noted that the government has not provided any written confirmation of the decision which has been taken, either. Therefore, they recommended continuing with the next hearing, scheduled for November 24, which will consider a number of their procedural and other appeals and complaints against the government. Perhaps the Government would take action in that hearing which would provide confirmation that the charges have been irrevocably dropped, they suggested. ¶5. (C) The Ambassador talked with the Foreign Minister on November 24. She informed him of the lawyers' determination and suggested that some form of written communication either to our employees or to the USG from the Government of Kyrgyzstan informing us that the judicial process against our BISHKEK 00001224 002 OF 002 employees has been terminated and will not be renewed would be necessary to put this issue finally to rest. She noted that Washington has asked us whether there are any dates in the second half of January or the first half of February when the government of Kyrgyzstan could not meet for the Annual Bilateral Consultations. He responded that Kyrgyzstan could meet on any dates in that timeframe. He said he would contact the Ambassador the next day to discuss further the issue of written confirmation that the judicial process has been irrevocably terminated. ¶6. (C) Comment: Sarbayev and Bakiyev have clearly been instrumental in bringing this problem toward resolution. From the way in which the case has progressed, it would seem to us that it was most likely the result of misjudgments and simple mistakes on the part of the Counter Intelligence division of the SNB. Reversing its missteps is something which cuts against the grain in the Kyrgyz Republic and especially in the SNB, and use of Article 65 was likely an attempt to get out of this dead-end without admitting to any error on the part of the agency and its employees. What we will keep pressing for, however, is that they find a way to guarantee that prosecution of this case will not be renewed. GFOELLER