Trouble in Court in North Tajikistan

Three Tajik judges have been accused of wrongdoing after a criminal investigation that many say has more to do with a power struggle between the judiciary and prosecutors than rooting out corruption.

At issue is the tension between the prosecution service, which currently wields immense influence over the rest of the legal system, and the judges, who should win greater powers once a much-delayed set of new legislation is agreed.

Caught in the middle are judges Bozorkhon Musoev, Shukhrat Artykov and Murtazo Aliev, from the Khujand city court in the northern region of Sogd.

Aliev faces criminal charges that included exceeding his official powers and imposing sentences that were too lenient. Public pressure has led to the cases against Artykov and Musoev being temporarily suspended, though they have been fired.

Aliev, meanwhile, has refused to resign, saying none of his mistakes were serious and his actions were in line with the ongoing trend towards making the implementation of criminal law more lenient.

“After the amendments and additions were made to the Tajikistan Criminal Code in May 2004, I reviewed 77 cases over three days, and in my haste, I delivered several incorrect sentences, because we were being rushed by our superiors,” said Aliev.

His error was to make his sentences too soft rather than too stiff, freeing six people. In one case he overturned a five-year sentence against a homeless man that he said had been handed down for purely “bureaucratic” reasons. Tajikistan does not have juries or an ombudsman so the issuing – and overturning – of verdicts depends entirely on judges.

In June 2004, however, the presiding council of the Sogd provincial court oblast reversed these decisions and ordered Aliev to go to Tajikistan’s highest judicial body, the supreme court, to explain himself. Disciplinary action was subsequently taken, which Aliev thought was an end to the matter.

He was wrong. Quite independently, the prosecution service had embarked on an investigation into Khojand’s judges, and found that Aliev, Musoev and Artykov had been passing sentences that were too lenient. Cases were opened against all three, and on December 9, Aliev was taken into custody and has since seen his criminal case transferred to the supreme court.

Aliev – a former prosecution service officer himself - has written to Tajik president Imomali Rahmonov asking him to intercede. The president appoints judges by decree.

He believes the campaign against the judiciary began after a speech Rahmonov made last year criticising judges for their sentencing.

Other observers believe the prosecution service is pursuing its own agenda. Facing calls to hand over some of its authority to the courts, including the right to sanction arrests and searches, prosecutors are striking out in an attempt to keep control.

“This is not the battle against corruption about which there's so much talk, but actions designed to reduce the authority of judges,” said Faiziniso Vahidova, a lawyer and human rights activist who heads the Khujand Centre of Legal and Economic Reform.

An article by Vahidova published in the Khujand newspaper Varorud late last year, which defended the judges and criticised the Tajikistan Judges Association for not taking action to support them, has been credited for the charges against Musoev and Artykov being suspended.

Khujand lawyer Ravshanoi Mahkamova believes much of the authority now enjoyed by prosecutors must be given to judges in order for Tajikistan to meet international standards.

“Every year, the transfer of primary powers to judges is put off,” said Makhkamova. “Tajikistan has signed all international agreements, and there is no choice. The judges must have these powers.”

Discussions about new legislation, which is likely to incorporate changes strengthening judges at the expense of prosecutors, are still in progress several years after the reform was first mooted.

The head of investigations at the Sogd prosecutor's office, Aziz Daburov, said he is not against transferring some responsibilities to judges, but argued that they are not ready to take them on at the moment.

“They can have more powers, but first the judges need to be prepared both morally and technically,” he said.

In its defence, Daburov's office cited examples of corruption among Sogd's judges, naming two who received jail sentences last year after being found guilty of taking bribes.

Few would deny that corruption in the judiciary is a problem. However, one human rights activist who did not want to be named said bribe-taking was just as much a problem in the prosecution service as among the judiciary, but because of the former's powerful position, it resisted probes into its members' activities. The average official salary for prosecutors, as for judges, is low even by Tajik standards at 15 to 25 US dollars a month.

Since judges from northern Tajikistan have so far been the main targets of the crackdown, some see a geographical bias to the policy.

One analyst told IWPR on the condition of anonymity that prosecutors are probably scared to charge judges from the south of Tajikistan, where the president and the ruling elite have their power-base.

Human rights lawyer Vahidova pointed out that as a result "it looks as though all judges in Sogd – and only they – are incompetents and bribe-takers. Doesn’t that also apply to judges and public servants in other regions?"

Daler Hamidov is the pseudonym of a journalist from the north of Tajikistan.