Committee against Torture
8 November 2012
The Committee against Torture this afternoon heard the replies of Tajikistan to questions raised by Committee Experts on the second periodic report of that country on how it is implementing the provisions of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
Responding to questions raised by Committee members on Wednesday, 7 November, the delegation of Tajikistan, led by Sherkhon Salimzoda, Prosecutor General of Tajikistan, said that places of detention were monitored and pre-trial detention situations were assessed on a regular basis. While the overall responsibility lay with the procurator’s office, the ombudsman was also involved in the prevention of torture and non-governmental organizations and the media also took part in visits. Authorities had taken measures to develop institutional and legal measures to ensure the rapid treatment of allegations of torture, the delegation said, pointing in particular to changes in the proceedings of the special court, the ombudsman and other offices.
The delegation of Tajikistan consisted of representatives from the Office of the Prosecutor General, the Council of Justice, the Human Rights Ombudsman, the Department of the Executive Office of the President, the Ministry of Interior, the Ministry of Justice and the Permanent Mission of Tajikistan to the United Nations Office at Geneva.
The Committee’s concluding observations and recommendations on the report of Tajikistan will be issued towards the end of the session, which concludes on 23 November.
The Committee’s next public meeting will be at 10 a.m. on Friday, 9 November when the Committee will consider the fifth periodic report of the Russian Federation (CAT/C/RUS/5).
Response of the Delegation of Tajikistan
In response to questions raised by Committee members on Wednesday, 7 November, the delegation of Tajikistan said it was pleased to hear that the Committee felt the country had made progress in combating torture. Tajikistan would continue to further improve its legislative base as well as its institutional mechanisms to combat torture. The delegation had taken good note of the Committee’s concern regarding the weak sanctions for torture – five years of imprisonment – and that no access to a lawyer was provided until a person was accused.
Article 143 of the Criminal Code provided criminal responsibility for harsh treatment and actions which belittled the dignity of a person, with sanctions ranging from two to five years. However, the article made no delimitation of degrading acts, harsh treatment and torture. The delegation went on to say that according to a decree issued in 2012 by the Supreme Court, factual detention should be seen as deprivation of a person’s ability to move freely – that included detention or enforcement to go or remain somewhere. Deprivation of liberty was counted from the time when a person was taken into detention. As per an instruction of the Prosecutor General, detainees were informed of their rights to medical and legal assistance.
Responding to the Committee’s query about the possible signing and ratification of the Optional Protocol to the Convention against Torture, the delegation said a Government working group had been set up to this effect. However, at the moment Tajikistan was not ready to sign and ratify the Optional Protocol due to financial difficulties, as explained to the Human Rights Council last year.
Tajikistan had made efforts in terms of training. It had published a handbook on the role of the procurator’s office and methods of torture with assistance from the Danish human rights institution, regular courses on ways to identify torture had been held in Tajikistan, and 30 staff of the procurator’s office had been trained abroad in 2011. The President’s office had also conducted more than 50 seminars over the past two years and authorities had established a hotline and a website allowing citizens to report police violence.
Places of detention were monitored through a national system and conditions in pre-trial detentions were assessed on a regular basis. While the overall responsibility lay with the procurator’s office, the ombudsman was also involved in the prevention of torture. The ombudsman was entitled to visits without prior notification and preventing him from doing so carried criminal responsibility. Non-governmental organizations and the media also visited prisons on a regular basis. Just recently, a place of detention in Dushanbe had been visited and a civil society organization which combated torture had monitored psychiatric institutions and hospitals to document cases of torture. Military premises were assessed by a special body which ensured that the requirements of the charter of armed forces were being met. Hazing among the armed forces was indeed a problem in Tajikistan, the delegation said, adding that this was the case in most countries. Sanctions had been imposed and the military procurator had set up a hotline to eradicate this practice. As a result of this and other measures, hazing in the military had been decreasing.
Authorities were taking measures to develop institutional and legal measures to ensure that allegations of torture were rapidly investigated. The delegation pointed in particular to changes in the proceedings of the special court, the ombudsman and other offices responsible for considering complaints. These complaints were made through sealed envelopes, making it impossible for prison staff to read the complaints.
The delegation did not think that it was correct that one doctor had had to examine 34 potential victims of torture in one hour.
Commenting on the administration of justice, the delegation emphasized that Tajikistan had taken practical measures to ensure human rights and freedoms since it had gained independence. The first Constitution, whose eighteenth anniversary was yesterday, recognized human rights and freedoms as the highest value, stating that life in dignity could not be violated. To guarantee justice, the Constitution provided for an independent judiciary. In adopting the new Constitution, the aim was to improve the judicial system further and enhance its role in defending human rights and freedoms. This was notably done by creating a constitutional court, together with civilian courts and administrative courts, and by increasing the salaries of judges. And the results were there, the delegation said. In 2006, the State had looked at more than 30,000 cases and four years later, in 2010, that number had almost quadrupled to more than 118,000 cases. Citizens turned to courts to defend their labour rights and their familial and economic rights, and to counter administrative violations of their rights. In addition, the newly adopted Criminal Code enshrined the adversarial principle, so the legal basis for defence rights existed.
On the comment made by the Committee about courts not reacting to allegations of torture, the delegation said there were examples where courts had recognized torture. According to the Criminal Code, judges must immediately look at allegations of torture. Otherwise a court was not impartial, which led to the cancellation of sentences. If force was used or if suffering was inflicted during the pre-trial detention phase, confessions could not be used in court. In looking at criminal cases, courts took into account all relevant aspects to ensure that lawful and valid decisions were handed down, the delegation reassured.
The Criminal Code provided for appropriate conditions of detention for juveniles, the delegation reassured. Psychologists must be brought in, juveniles must have access to representatives, and a lawyer must take part in all activities. Punishments were also commensurate for juveniles: when a juvenile carried out a crime for the first time, he or she would not be given a prison sentence, and fines were much lower than for adults.
Turning to torture against juveniles, the delegation said three cases of torture against minors had been recorded this year and the culprits had been sanctioned. To prevent this phenomenon from happening, changes had been made to the proceedings of the Ministry of the Interior and a special service had been set. In accordance with the Criminal Code, crimes against minors were recognized as an aggravated circumstance, and this was governed by the Convention on the Rights of the Child, which Tajikistan had ratified in 2003. In order to set the situation right in this sphere, Tajikistan had adopted a number of legal and sublegal texts on sanctioning harsh treatment and on difficult family circumstances.
The delegation stressed that the policy of Tajikistan was directed towards improving procedures, ensuring the protection of human dignity and combating torture through various measures. Tajikistan was ready to work and hoped that together they could bring the work in the country in line with international standards aiming to humanize society.
Follow-Up Questions from Experts
GEORGE TUGUSHI, Committee Rapporteur for the report of Tajikistan, said nobody neglected the progress Tajikistan had made, notably in increasing the independence of judges. While it was important for the Committee to assess legislation, it also wished to evaluate the empirical practice, how legislation translated into practice.
The delegation had given a number of convincing answers. However, one of the issues which must still be addressed was linked to the Criminal Procedural Code which provided that evidence obtained under torture was “invalid” – but “invalid” did not mean “inadmissible”. Mr. Tugushi was also concerned that no measures were prescribed for courts when they were confronted with evidence obtained under torture.
The Rapporteur said if he was not mistaken, the moment when deprivation of liberty was legally established in Tajikistan was when a person was brought into the facility. However, safeguards should apply as soon as a person remained with the police. His or her rights should also be explained at that very moment.
Reacting to the delegation’s comments about visits to detention facility, the Rapporteur said he had not heard much about visits to police facilities even though in his experience torture and ill-treatment primarily took place in police custody. Furthermore, the fact that non-governmental organizations and the media were taking part in visits did not mean that these were effective. What was very important when undertaking such visits was their preventive nature, which required access without prior notification, and that medical experts were also on board.
Mr. Tugushi said the lack of funding should not be a reason not to accede to the Optional Protocol of the Convention, which offered the possibility of a timeframe. Also, it was commendable that Tajikistan had a moratorium on the death penalty – would it now consider abolishing it?
NORA SVEAASS, Committee Co-Rapporteur for the report of Tajikistan, said she understood that there was a good system for logging complaints, notably through closed envelops, but wondered whether this was a routine practice in all institutions, also in psychiatric hospitals, and whether there had been any threats to people who forwarded complaints.
Likewise, the Committee had been informed that some people who wanted to present information to the Special Rapporteur on Torture had been threatened, which was of grave concern to the Committee.
Ms. Sveaass underlined the importance of medical checks and follow-ups in detecting acts of torture, referring to the Istanbul Protocol.
The Co-Rapporteur further said it was important to look ahead, but it was also important to look back. In this sense it was important that reparation be provided to the civil victims of acts of torture committed during the phase of violence from 1995 to 1999.
Other Experts said it was not entirely clear to them why the association of young lawyers had been forced to end its activities and what the exact competence of military courts was.
A Committee member expressed concern at the incidents of 5 and 6 November about which the BBC had reported. Apparently prisoners had been transferred from one penitentiary facility to another without being informed of the reasons for the transfer and some detainees had been beaten up upon arrival at the new centre.
Response by the Delegation
In response to these questions and comments and others, the delegation said there was no distinction between “invalid” and “inadmissible” as far as evidence obtained under torture was concerned. Evidence obtained through torture was indeed considered invalid. Allegations of torture would be verified by the judge by hearing both sides on the basis of adversarial procedures. If the judge came to the decision that the evidence was indeed obtained through torture, the accused person would be released and provided with compensation.
Twelve hours for notifying relatives was the maximum time, the delegation clarified. This did not mean that officers waited for that time before informing the family. The rule was that this must be done immediately but no later than 12 hours.
As for the time of deprivation of liberty, it was indeed the time of factual taking into deprivation that held true and courts could also investigate what occurred during preliminary detention.
There were laws regarding violations perpetrated by military servicemen and such cases were being dealt with by military courts. However, these military courts worked much the same as civil courts.
A great deal of work had been done to abolish the death penalty and Tajikistan had been one of the first States in Central Asia which had announced a moratorium on the death penalty in 2004. However, when the decision had been announced, an overwhelming majority of the population did not agree. Tajikistan was an Islamic country, its laws and customs were based on Islamic religion and many people did agree with the abolition of the death penalty. In recent years, however, the discussion was not as heated. The Government had formed a working group and Tajik society was gradually moving in the direction of abolishing the death penalty altogether.
For use of the information media; not an official record