Tajikistan

Human Rights Committee considers report of Tajikistan

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The Human Rights Committee has considered the initial report of Tajikistan on how that State party implements the provisions of the International Covenant on Civil and Political Rights.

Introducing the report, Khalifa Bobo Khamidov, Minister of Justice of Tajikistan, said from the very first days of independence, Tajikistan had involved itself in international political life. The acceptance of international legal texts had set new markers in Tajikistan, giving priority to promoting the protection of human rights and fundamental freedoms, and proof of this could be seen in the Constitution, the first Tajik legal document guaranteeing these, as there had been no democratic recognition of these rights. With the proclamation of independence, the legislative and organisational structures had been reformed to fit international norms and to protect the individual. The people did not exist for the State and Government – these institutions existed for the people.

In preliminary remarks, Christine Chanet, the Chairperson of the Committee, said positive changes had been identified, in particular the moratorium on the death penalty, the reduction in the length of sentences, and with respect to women, as forced marriages and polygamy were sanctioned. However, there were still many issues of concern that had been raised by the Committee, and these had not been fully clarified. Regarding the death penalty, the difficulties faced by the Government were understood, however, a referendum would not be a solution. The final concern of the Committee was that it seemed that the freedom of the opposition was extremely restricted, limited because Tajikistan had criminal offences on its books such as destabilising the authorities or offending the President which could be used to limit their opportunities for criticism.

Other Committee Experts raised questions on subjects pertaining to, among other things, what progress had been made in implementing the measures aimed at increasing the percentage of women in political life and in official positions; what legal and protective measures were available to women to deal specifically with domestic violence and the abuse of women; and what was the current status of the moratorium on the death penalty. Questions posed orally were on varied topics, including the need for follow-up to the recommendations made by the Committee; a request for further definition of the categories of crime enumerated in the Criminal Code for which the death penalty was mandatory; and allegations about the extent of torture and illegal imprisonment as perpetrated by the State party and how much the Government viewed this as a serious issue.

The Committee will issue its formal, written concluding observations and recommendations on the report of Tajikistan towards the end of its session which will conclude on 29 July 2005.

Also representing Tajikistan were representatives of the Ministry of Justice, the Commission for Securing the Compliance of the Republic of Tajikistan of its International Human Rights Obligations, the Supreme Court, the Ministry of the Interior, and the Ministry of Foreign Affairs.

Tajikistan is among the 154 States parties to the International Covenant and as such it is obligated to submit reports on its performance aimed at implementing the provisions of the treaty. It is also one of the 104 States parties to the Optional Protocol to the Covenant.

The Committee will reconvene at 3 p.m. this afternoon to begin its consideration of the second periodic report of Slovenia (CCPR/C/SVN/2004/2).

Report of Tajikistan

The initial report of Tajikistan (CCPR/C/TJK/2004/1) indicates that human beings and their rights and freedoms are of supreme value. The rights and freedoms of the person and the citizen are recognised, observed and protected by the State, and are regulated and protected by the Constitution and laws of the Republic and by the international legal instruments recognised by Tajikistan. All persons are equal before the law and the courts, and the rights and freedoms of every person are guaranteed by the State regardless of ethnicity, race, sex, language, religion, political beliefs, education or social or property status. Direct or indirect violation or restriction of the rights or freedoms of an individual or citizen on any of these grounds or others is a crime.

In order to assist the President and the Government in monitoring respect for the constitutional guarantees of the rights and freedoms of individuals and citizens, the Department (now the Office) for constitutional safeguards of citizens' rights under the authority of the Executive Office of the President was established in 1997. A large number of non-governmental organizations, many of which are involved with human rights issues, operate in Tajikstan. Further, since independence, Tajikistan has ratified all six core international human rights instruments.

Equality between men and women is guaranteed in the Tajik Constitution. Sex discrimination is a crime and is punished as such. Although the representation of women in Parliament is still low in percentage terms, women are nevertheless becoming increasingly active in national political life. The issue of equal participation of women in public administration is closely connected with the enrolment of women in general education, secondary and tertiary education. Tajikistan has based its State policy to guarantee the equal rights and opportunities of men and women on the principle that measures and actions taken by the State must be directed to the achievement of equal outcomes for men and women, and not just to equal treatment of both sexes.

Presentation of Report

KHALIFA BOBO KHAMIDOV, Minister of Justice of Tajikistan, presented the report, saying that the most improbable forms of inequality were being fought in Tajikistan. Laws should be equal for the poor and the great, and human rights were among of the eternal problems for the socio-cultural development of mankind, traversing the centuries. It was the lack of respect of, the flouting of and the neglect of human rights that were the sole reason for social upheaval and distorted government. The civil rights enshrined in international legal documents which were the standards for civil society were the results of a long historical development.

The freedom and inviolability of the person, the recognition of guilt only in front of a court, the freedom of speech and conscience and others gradually extended human rights and their guarantees. From the very first days of independence, Tajikistan had involved itself in international political life. The acceptance of international legal texts had set new markers in Tajikistan, giving priority to promoting the protection of human rights and fundamental freedoms, and proof of this could be seen in the Constitution, the first Tajik legal document guaranteeing these, as there had been no democratic recognition of these rights. Thanks to independence, direct interaction had been held with countries with a wealth of democratic experience.

Much had changed both in society and in people's minds. At the State level, the interests of the individual had been proclaimed over the interests of society, and a liberal, democratic and secular society was being built. With the proclamation of independence, the legislative and organisational structures had been reformed to fit international norms and to protect the individual. Criticism only made societies more democratic and strong, and Tajikistan was therefore holding a dialogue at the international level in order to improve its situation. The people did not exist for the State and Government – these institutions existed for the people. Only if there was a top to bottom approach could there be the creation of a State where the rights of all were guaranteed and the primacy of human values was asserted.

Questions by the Committee Experts

A series of questions were submitted by the Committee Experts in advance of the meeting and others were posed orally. Among the questions raised were what was the status of the International Covenant on Civil and Political Rights in domestic law; what progress had been made in implementing the measures aimed at increasing the percentage of women in political life and in official positions; what legal and protective measures were available to women to deal specifically with domestic violence and the abuse of women; what was the current status of the moratorium on the death penalty; allegations that torture was routinely used by police and security officials in order to extract confessions; what was the process whereby judges were reappointed; a request for information on the number of journalists arrested, prosecuted, charged or sentenced to fines and prison terms in relation to their professional activities; and a response was requested to authoritative criticisms that the national referendum to reform the Constitution in 2003 was neither free nor fair.

Constitutional and Legal Framework within which the Covenant is Implemented; Right to an Effective Remedy

The delegation said that in accordance with article 10 of the Constitution of Tajikistan, international legal instruments recognised by Tajikistan were an integral part of legislation. The International Covenant on Civil and Political Rights was a constituent part of the legal system of the country and could be used by courts when settling disputes. On signing the First Optional Protocol to the Covenant, Tajikistan had recognised the importance of the Committee, and appreciated its contributions, which allowed for positive changes to take place in improving the legal guarantees for human rights and fundamental freedoms for the citizens of Tajikistan.

A commission had been created on the realisation of international obligations in the field of human rights, the delegation said, and this commission received notes from the Committee requesting information and comments in respect of individual complaints addressed to the Committee. Much work was being done to harmonise the criminal code, in particular in the context of the death penalty, currently under moratorium since 2004. All death sentences handed down since that date had been commuted to prison sentences. A criminal code had been adopted in conformity with international standards. However, Tajikistan did not consider this sufficient, and intended to improve measures for following-up and applying the recommendations made by the Committee.

Equality between the Sexes and Non-Discrimination

Since the report had been drafted, the delegation said, substantial changes had occurred, namely that legislation had been adopted substantially strengthening legal standards in respect of women and society. In order to break the gender imbalance, the quota regarding girls from remote rural areas had been increased. The national report on the elimination of discrimination against women had been submitted. Policies and models aimed at improving the situation of women had been adopted since independence. A lot of attention was being paid to women and the poorer strata of the population. There was a Committee on Women and Family Affairs, with the main function of promoting the political and overall situation of women in society; it created programmes and policies with various goals, including improving women's access to political life and health, medical and other services.

The Lower House of Parliament was also working towards improving the situation of women. It examined statistics and ways in which to improve the situation of women country-wide, among other things, such as improving ways in which various bodies approached women's rights. Four women had been elected to the Upper House in the last elections. Work was being done to expand women's representation in State bodies, with the aim of raising it to 33 per cent. Regarding domestic violence, internationally recognised standards and provisions were implemented at all levels, including law disputes. A national programme of action had been adopted to enhance the role and status of women, with the aim of improving women's health, improving equal access to education, living standards, and ensuring equal rights and opportunities at all levels of society and walks of life, and eliminating violence.

Derogations

The Constitution of Tajikistan determined the conditions in which a state of emergency could be declared, the delegation said. These articles of the Constitution were in agreement with the Covenant. The legal regime for the state of emergency did not provide for the possibility of limiting the rights of citizens nor their freedom of conscience. Special importance was attached to these rights, and there were certain requirements imposed upon them. Any limitation of the rights and abilities of citizens to enjoy their rights were imposed only by the courts, and there was no way around this stipulation. Each citizen determined his or her attitude to religion, and no force could be applied in this respect. As of 1999, there had been no state of emergency in Tajikistan, and it was unimaginable that one would be introduced, as it was a stable country.

Right to Life

The delegation said that regarding the moratorium on the death penalty, the Constitution recognised that the rights of the individual were the highest, and the Criminal Code had been amended in this respect in order to mitigate sanctions on the individual. The moratorium had been applied since April 2004. In the Criminal Code, there were only 5 criminal offences for which the death penalty could be handed down: murder with aggravating circumstances, terrorism, genocide, biocide and rape. Any sentences to death handed down since the moratorium began had been commuted to 25 years imprisonment. To achieve the full repeal of the death penalty, there was a need for a national referendum, as well as amendments to the Constitution. Tajikistan intended to bring its legal instruments into line with international standards. The day was not far off that the death penalty would be repealed, and progress was being made towards that end.

Changes had been introduced to current criminal legislation with regards to the moratorium. Life imprisonment was not handed down to women, nor to those who had committed crimes before reaching 18, nor to men who had reached the age of 63 before their judgement was handed down. People sentenced to life imprisonment served their sentences in corrective colonies operating under a special regime. Regarding extradition of people, there were agreements between Tajikistan and some other countries. The particular crime was taken into consideration in the case of extradition. If there was a possibility that a person could be subjected to torture or the death penalty in the receiving country, then the person would not be handed over, and would instead by tried in Tajikistan.

Freedom from Torture; Treatment of Prisoners and Other Detainees; Security of the Person and Freedom from Arbitrary Arrest

The Constitution stipulated that no one could be subjected to torture, cruel or inhuman treatment, or forced medical or scientific experiments should these last constitute a threat to life, said the delegation. Work had been carried out to eliminate torture, and monitoring systems were being improved so that anybody committing acts of torture would be brought to book. The Criminal Code provided for sanctions for forcing a person to testify under threat, blackmail, or any other legal act by those responsible for investigation or criminal proceedings. The punishment was strengthened if any violence was undergone. Torture, harsh treatment or other inhuman actions creating serious bodily harm or causing death were prohibited. The accused and other people involved in the commission of crimes were guaranteed legal representation and access to this representation.

Monitoring was carried out by the Prosecutor's Office on corrective institutions, police stations, and others. Humane and humanitarian conditions of detention were also monitored. Despite all efforts, there were isolated situations where suspects were beaten or illegally detained. None of these cases had remained unpunished. There were a number of standards and rules regarding the treatment of rights of the detained, and a lot of work was done to ensure compliance. Violations of the rules did occur, but again, these were punished. Recently increasing figures did not indicate an increase in violations, but rather an increase in the number of reports, as the people of Tajikistan became ever more confident in the democratic institutions of the country.

Response to Oral Questions

Committee Members posed questions orally to the delegation on various topics, including the need to respond to communications from the Committee; the need for follow-up to the recommendations made by the Committee Experts; why and in what circumstances the crime of polygamy could be used as a pretext to punish somebody in opposition to the Government; a request for further definition of the categories of crime enumerated in the Criminal Code for which the death penalty was mandatory; the special regime for those under sentence of life-imprisonment and the number treated under the regime; allegations about the extent of torture and illegal imprisonment as perpetrated by the State party and how much the Government viewed this as a serious issue; the lack of or difficult access by non-governmental organizations (NGOs) to correctional institutions and others; and the need for increased training on victims' needs for police and security officials. Committee Members also noted that the report was very complete, but underscored the lack of women in the delegation itself.

In response to these questions and others, the delegation said Tajikistan was a young Republic, just beginning its path of democratic development, and therefore there were issues which required further discussion in the country in the academic world, the political world, and among representatives of NGOs. Tajikistan was ready to cooperate fully in order to achieve a civilised society. Regarding the issue of civil and political rights before the courts in Tajikistan, the courts had the right to invoke the International Covenant on Civil and Political Rights as well as other international instruments such as that on the Rights of the Child when resolving disputes. According to the Constitution, the death penalty could be applied for particularly grave crimes, and these were murder with aggravating circumstances, rape with particularly aggravating circumstances, terrorism, biocide or genocide. There had never been any cases of the latter two. In general, the death penalty had been imposed for murder or rape.

In the context of the moratorium on the death penalty, this applied to the imposition and the execution of this penalty, for whatever crime, including terrorism. Fourteen persons were executed in 2004 before the moratorium began. There had been no cases of it being carried out since, as all persons condemned to death in places of detention had had their cases reviewed. Some were pardoned by the President, and others had their penalty commuted to a term of no longer than 25 years imprisonment. Life imprisonment was something new in the code, and had been imposed as an alternative to the death penalty. There was no special regime in this case, and was a type of imprisonment handed down mostly to violent recidivists. Regarding the abolition of the penalty, this had not been discussed fully in the country for many years, and those surveys that had been held showed that the people of the Republic were in favour of the retention of the death penalty. The moratorium had been imposed as a decision by the Head of State, and thus some time would be required in order to further explain the issue to the people so that a referendum could be held with the people being fully informed.

Tajikistan was a country that recognised the automatic incorporation of international acts into its law, and when a given international legal act was recognised and ratified, there was no need for an adoption for the indigenous law as was the case in some other countries. For that reason, there were problems, and right now Judges often went through training courses and seminars in order to ensure they could apply the standards of international law. Tajikistan was a post-Soviet society, and it was impossible to toss everything that had been inculcated into people's perceptions and into society during this period overnight. There was a need to learn how to apply the standards of international law. In order to combat the scourge of forced marriages, there was a Women's Committee which operated in many fields, including that of this phenomenon, with the aim of preventing it. There was also provision in the Criminal Code in this context. Regarding trafficking in persons, this was a rather new type of crime, appearing over the last four years in the country, and there had been a number of criminal convictions for this crime.

Regarding the definitions of the term "terrorism", the delegation noted that it was very difficult to define, but in the Criminal Code of Tajikistan, it was defined in the context of the content and the object of the crime. As for congestion in prisons, this was a very grave problem, as most of the buildings dated from the previous century. Tajikistan required and was asking for international assistance for improving these conditions, for training its penal staff, and for improving the corrective facilities. Despite the immense financial difficulties faced by the Government, an enormous financial contribution was made by it with these aims in mind. The Government considered that the Constitution of the country was the prime authority, which had precedence over both national and international law.

The delegation also asked for more information on various issues raised by the Experts, in particular on issues related to sexual orientation in the context of limiting rights. As for the composition of the delegation, the head of the delegation said that Tajikistan would send only women next time, and would use all criticism to overcome its shortcomings.

Right to a Fair Trial

On the issue of reappointment of judges and under what circumstance they could be dismissed, the delegation said the judiciary had equal status with the legislative and executive powers, and judges were appointed on the territorial principle. There were also economic judges, military judges appointed by military zones, and the Supreme Court. According to the constitutional law, judges, regional judges, and judges in garrisons were appointed and dismissed from their posts by the President. The judges of the highest courts were elected by the Upper Chamber of Parliament, and could also be dismissed by this body. Until recently, they were elected for a period of five years of office, but now after amendments to the Constitution, the term of office had been extended to 10 years, after which they could be reappointed or re-elected. Dismissal of judges was possible in various cases, including voluntary retirement, a written statement on various grounds, including if the judge had engaged in activities incompatible with his position, if he was convicted by a court of an offence, or was recognised to be mentally incompetent.

Grounds for limiting public access to trials included national security, but cases held in camera were very rare. Criminal court cases were always open, and anybody wishing to attend could do so. Almost all cases in the Supreme Court had the presence of the media. Criminal procedures in Tajikistan were different from those held in other States. Under the law of Tajikistan, criminal investigations were brought by the Criminal Procurator, who also issued arrest warrants. After the investigation was completed, the Procurator sent the charges to the court. In the courts, the defence and the accuser have roughly equal rights in terms of access to information. However, there was no equality when it came to monitoring, as the Procurator was responsible for supervision. A person suspected or charged of terrorist offences came under the aegis of several Ministries, including those of defence and the interior. The Ministry of Security was directly involved in combating terrorism and for coordinating data. It also worked to detect terrorism and to prevent terrorist acts both nationally and abroad when involving Tajikistan nationals.

Freedom of Religion and Belief

On the topic of application for registration of organizations under the Law on Religion and Religious Organizations that had been denied, the delegation said there were many mosques in the country, as well as 85 non-Islamic organizations. The reasons for refusing registration has been in accordance with the law on religion and religious organizations, for example that some mosques had been built in areas where the population was already served fully. Two non-Islamic religious organizations had not been registered, and this was because they did not comply with legislation. All actions had been carried out in strict compliance with the laws and Constitution of Tajikistan.

Right to Freedom of Expression, Assembly and Association; Right to take Part in the Conduct of Public Affairs

Regarding journalists who were arrested, prosecuted, charged or sentenced to fines and prison terms in relation to their professional activities, the investigative and judicial bodies of Tajikistan did not arrest journalists in pursuit of their professional activities, nor detain them or find them criminally liable, the delegation said. From the view point of the law enforcement of the Republic, even in cases of prosecution of journalists, this was not undertaken nor pursued because of the profession of the accused. The Government aimed to protect the life and health of correspondents.

Allegations had been made that the authorities had refused to register certain political parties. The activities of political parties were regulated by the law in Tajikistan, and the latest versions had been produced by consensus between various bodies. Political parties were social associations of members and proponents of the same ideas. The registering officer needed to be given a list of at least 1,000 members. In registering a party, particular attention was paid to the Constitution and that members had joined of their own free will. Two parties had been denied registration in 2004, as they did not meet the requirements of the law in terms of the documents required and they also violated the requirement on the voluntary membership, as it had been found that those who drew up the list included names of people who had nothing to do with the party. Neither party had complained to the courts.

Dissemination of the Covenant and the Optional Protocol

To fulfil Tajikistan's human rights objectives, an expert group had been created to write the report for the Committee, including members of civil society, and with the assistance of the Committee on Human Rights which had provided advice. Also, assistance was received from the United Nations Office for Peace-Building, the Organization for Security and Cooperation in Europe and other international organizations. An initial report on the Covenant was being prepared and would be distributed to a wide range of readers, and would be fully publicised nationally. The report had been widely disseminated for perusal, including to police officers and judicial advocates. There was a lack of transparency in terms of feedback from non-governmental organizations, and this was regrettable, the delegation said, as it would have enhanced the report, but it was hoped that this would change in the future with increased transparency.

The Covenant had been translated into the official languages and issued in brochures to officials, students, judges, procurators, law officials, and others. A decree of the Government had led to the adoption of a State programme for human rights education, with the aim of giving the process of democraticisation of social and public life deeper roots, and to raise the general human rights knowledge and culture of the general public in order to instil a feeling of respect for the law.

Response to Oral Questions

Committee Experts asked further questions and made comments on various topics including whether the President had the sole power and discretion of appointments to the Constitutional Court and who had the power to remove these judges, and whether that power was unrestricted; the apparent records of sentencing shown by the statistics in the report as there was a very low level of acquittal and what steps should be undertaken to ensure this situation changed, as it appeared that accusation was almost tantamount to sentencing; at what specific moment an apprehended person could ask for access to lawyers; the question of suspects arrested for subversive activities and the behaviour of law-enforcement officials in this context; the issue of public insult to the head of State and whether the Government was considering the possibility of removing this as a category of crime and subsuming it into the ordinary criminal charge of personal damage; reports that corporal punishment was still endemic in homes and schools as well as used as a disciplinary measure in penal institutions and whether the delegation could confirm this and what measures were taken to resolve the issue; and an update was requested regarding the issue of an opposition newspaper which had been denied access to printing facilities by the Government and subsequent confiscation of its print-run. Members also commented favourably on the progressive abolition of the death penalty as indicated by the current moratorium on that sentence.

Responding to these issues and others, the delegation said the President nominated the judges of the supreme bodies of the judiciary of Tajikistan, but the Upper Chamber of Parliament ratified them. Previous members of the armed opposition had now created a party, the Islamic Renaissance Party, and operated freely in political life in the country, and there were representatives of this party, including ministers, in the Government. Regarding the suspension of the death penalty, the law on referendums stipulated what issues could and could not be submitted to referendum, and the abolition of the death penalty was difficult to achieve after referendum, although this was the ultimate goal of the Government. When the Criminal Code of the country was discussed, sexual orientation was raised, and it now did not contain any provision for non-coercive sexual relations between individuals. However, same-sex marriages were not accepted. There were no restrictions on the rights of homosexuals stipulating that they did not use force on others to participate in their activities. The legal basis for enhancing the role of women in the State was provided by the law which guaranteed equal rights and treatment of all. The delegation also noted that it was illegal for corporal punishment to be carried out in schools.

Preliminary Remarks

CHRISTINE CHANET, Committee Chairperson, said the Committee had appreciated the dialogue, and felt that just the size and level of the delegation itself and the way it had answered the questions showed how seriously Tajikistan took this exercise, even though the report had been submitted late. However, as Tajikistan was a young country, and had informed the Committee of its problems, the body could show some latitude. Positive changes had been identified, in particular the moratorium on the death penalty, the reduction in the length of sentences, and with respect to women, as forced marriages and polygamy were sanctioned. However, there were still many issues of concern that had been raised by the Committee, and these had not been fully clarified, for example with regard to the Optional Protocol to the Covenant. There had been many examples of misunderstandings and failures, often due to poor communication within the Government itself.

There had been great emphasis on the situation in prisons, and what was being done to improve the situation there. The total prison population was very high, and higher than that in other countries, and this was surprising. The incarceration rate that appeared to have been adopted, particularly in regard to petty crime, did not appear to be the appropriate solution, and it was hoped alternatives would be found, such as community work, which would be as much of a deterrent and not as expensive. Regarding the death penalty, the difficulties faced by the Government were understood, however, a referendum would not be a solution, and there had never been one on this subject anywhere in the world, and indeed, Ms. Chanet said, this would be the worst solution. There was also a need to move forward from the old concept of procurators, as they currently had both roles as prosecutor and judge, and this was a system which the Committee had frequently viewed and believed that it should be moved away from so that there were equal arms between the prosecution and the defence and to ensure that detention was ordered and supervised by an independent judicial authority.

It also appeared that access to a lawyer was not guaranteed in practice, but only on paper. There was, due to registration processes, always a gap between entering detention and access, and this was dangerous as it left the door open to intimidation in order to obtain evidence. The final concern of the Committee was the apparent lack of possibility of the opposition to speak out, through the registration of political parties or through the press. Disturbing information regarding journalists being arrested and others had been received, and the sentencing received for crimes of self-expression appeared to be disproportionate. It seemed that the freedom of the opposition was extremely restricted, limited because Tajikistan had criminal offences on its books such as destabilising the authorities or offending the President which could be used to limit their opportunities for criticism. Recommendations by the Committee would be provided on this topic in particular, as well as all others raised.

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