DUSHANBE (18 May 2012) – At the conclusion of his visit to the Republic of Tajikistan undertaken at invitation of the Government from 10 to 18 May 2012, Juan E. Méndez, the UN Special Rapporteur on torture and other forms of cruel, inhuman and degrading treatment or punishment, delivered the following statement:
“At the outset, I would like to express my appreciation for the full cooperation extended to me before and during the visit by the Government of the Republic of Tajikistan. My fact-finding is fully effective only if I enjoy unrestricted freedom of inquiry. In this respect I am grateful that the relevant authorities provided me with unimpeded access to all places of detention without prior notification and to interview detainees in private, even though I also had some cases of excessive readiness and preparation.
In the past two years Tajikistan has introduced some encouraging changes in the normative framework, including the most recent introduction in April 2012 of a new criminal provision defining torture and providing penalties for it.
Amendments in substantive and procedural law, and internal regulations and instructions issued by various agencies are a welcome change. The broad awareness raising campaign on prohibition of torture in international and domestic law initiated by the authorities is a step in the right direction. It is difficult at this stage to assess their actual impact on the ability of citizens to enjoy and enforce their right to physical and mental integrity under all circumstances. They will require sustained effort and commitment from the highest levels of authority and a clear pledge to “zero tolerance” of torture. At this moment, I am afraid that most of the authorities I met with are satisfied that the normative changes are all that is necessary. If there is no recognition that there is a problem with mistreatment, whether systematic or not, mistreatment is not likely to go away. On the contrary, it is likely to increase as soon as attention shifts to other matters.
The new legal definition of torture in Art. 143 of the Criminal Code is designed to bring the offense in line with international law. The penalty of five years for a first offense, however, does not seem to comply with the obligation to treat torture as a severe crime with commensurate penalties, as it allows for the application of amnesty and other forms of reduction and mitigation. I am concerned that a relatively low penalty does not offer a strong disincentive to commit torture. There have been few cases of serious investigation, prosecution and punishment of acts of torture and, until the amendment of the Criminal Code in April, they were treated as “negligence,” “abuse of authority” or “excess in authority,” and therefore subject to minor sanctions, reduction of sentences and amnesty.
Likewise, the Code of Criminal Procedure has incorporated an exclusionary rule (Art. 88.3) in line with the Convention against Torture, requiring that confessions and declarations obtained under torture or other mistreatment must be inadmissible in any criminal proceeding against a defendant. Although the norm has been in effect for some time, I understand that it has never been applied by a court of law to exclude tainted evidence. I heard from several defense lawyers that often the record is inaccessible to them and that decisions and sentences do not explain on what evidence they are based. All of this leads to the conclusion that confessions extracted by violence remain the main investigatory tool of law enforcement and prosecutorial bodies. In contrast, we heard many cases in which defendants recanted their confessions as soon as they were in front of a prosecutor or a judge, and their allegations were dismissed as without merit, even when traces of mistreatment were visible. We have heard of no instance of investigation ex officio of torture in those cases, despite the clear international law standard to that effect. The forensic experts that are in charge of examining such evidence are not equipped or professionally trained to do so. The Istanbul Protocol on how to detect torture is not applied by these professionals who, in addition, do not seem to guarantee scientific or professional independence from law enforcement bodies.
For the first time the Constitutional Court heard a case this week about the constitutionality of a procedural norm applicable to torture. I hope that the written decision – in this and in two upcoming cases -- will offer clear guidelines as to the obligation to investigate, prosecute and punish torture, to the accessibility of defense counsel and the public to evidence of such inquiries, and to prosecutorial transparency and promptness in discharging these important functions.
In this preliminary finding let me say that pressure on detainees, mostly as a means to extract confessions is practiced in Tajikistan in various forms, including threats, beatings (with fists and kicking but also with hard objects) and sometimes by applying electric shock. I am unable to say whether the practice is less prevalent or systematic in recent times; I am, however, persuaded that it happens often enough and in a wide variety of settings that it will take a very concerted effort to abolish it or to reduce it sharply. Efforts to that effect should be focused on the early moments of apprehension, in particular by effectively applying the existing norm about access to a lawyer from that very moment. I hope that the regulation of the legal profession (advokatura) currently under discussion will strengthen that standard and find ways of meaningful enforcement, as well as create a serious system of independent and robust legal services for indigent criminal defendants. The burden on the investigative bodies to achieve high level of resolution of investigated crimes inevitably leads to recourse to all possible means that may yield results, mostly by way of obtaining confessions.
The transfer of most pre-trial detention facilities (SIZO) to the Ministry of Justice seems to have resulted in an improvement in their physical conditions and in the treatment of inmates held in them. Similarly, I must commend the Ministry of Justice for the humane and decent conditions we found in colonies of “strict” and “enforced” regimes. The open blocs and living areas in all but the “prison” regime allow for meaningful human contact among inmates, and facilities for long family visits are very decent. Food and work opportunities are also to be commended. Medical services are limited but it is worthy of note that medical and paramedic staff is regularly on duty. Religious services are also provided. My main objection is that the law provides for very infrequent short visits by family, conducted through glasses and without physical contact. Short visits are even less frequent in the “enforced” and “strict” regimes. It seems to me that this system is excessively harsh on the inmates and that it unfairly punishes their loved ones. In the case of life term prisoners, the recent changes in the law in fact introduced unnecessary and inexplicably harsh restrictions in family contacts and parcels delivery. The whole system is based on very limited human contact among inmates, including in some cases solitary confinement. A short family visit once a year only accentuates the enforced isolation of life term prisoners.
We visited temporary facilities (IVS) for short-term detention managed by the Ministry of Interior or the State Committee for National Security. We also found them to be clean and tidy, though some seemed to be very freshly painted and renovated. We were surprised to see very few detainees in them, but we did get a chance to have unmonitored conversations with them. They had no complaints to make about the treatment by IVS guards. The detainees are taken out during these few days at the IVS and brought to the offices of investigators; it is there that the mistreatment is likely to take place.
I am concerned at the lack of safeguards against illegal extradition or rendition from and to other countries, as there seems to be no meaningful opportunity for judicial review of these measures that are generally conducted by the law enforcement bodies under the direction of the Prosecutor General. The Minsk Convention on Legal Assistance in civil and criminal matters of 1993, other agreements between CIS countries and the Shanghai Cooperation Agreement offer general language about protection against abuse, but they operate more meaningfully as international cooperation in law enforcement. The result is that international law prohibitions on refoulement to places where a person may be subjected to torture or cruel, inhuman or degrading treatment are not guaranteed in fact.
I will be making a more complete report to the Government of Tajikistan with some recommendations that I hope will assist it in combating torture and ill-treatment. For now I express again my gratitude for the invitation and the open access I have received. I also want to thank all members of my team, the Tajikistan-based staff of the OHCHR and UNDP for coordination and transportation, my two very able interpreters, and colleagues from the international community based in Tajikistan for their insight. I wish to thank the Tajik civil society and independent lawyers for their assistance in putting us in contact with victims and their families, and to express my support to the important efforts of survivors of torture, their relatives and Tajik human rights defenders.”
The mandate of Special Rapporteur on torture covers all countries, irrespective of whether a State has ratified the Convention* against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The Republic of Tajikistan ratified the Convention in 1995.
Juan E. Méndez (Argentina) was appointed by the UN Human Rights Council as the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment in November 2010. He is independent from any government and serves in his individual capacity. Mr. Méndez has dedicated his legal career to the defense of human rights, and has a long and distinguished record of advocacy throughout the Americas. Learn more, log on to: http://www2.ohchr.org/english/issues/torture/rapporteur/index.htm
Check the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment: http://www2.ohchr.org/english/law/cat.htm
OHCHR Country Page – Tajikistan: http://www.ohchr.org/EN/Countries/ENACARegion/Pages/TJIndex.aspx