Praise for Tajikistan's New Penal Code
Reform of arrest system a major step forward, but many other issues remain to be tackled in the way courts work.
Praise for Tajikistan's New Penal Code
Reform of arrest system a major step forward, but many other issues remain to be tackled in the way courts work.
Legal experts in Tajikistan have welcomed the a new criminal procedural code passed by parliament last month, saying it corrects many obsolete rules and practices dating back to the Soviet period.
The bill, which define how criminal cases are dealt with from detention through to trial, was passed by the lower house of parliament on October 15, and will now have to go through the upper chamber before being sent to President Imomali Rahmon for final signature, which is expected to happen early next year.
One of the key changes envisages that prosecutors will no longer have powers to issue arrest warrants and order police searches, wiretaps and seizures of funds and property. Instead, the decision to approve such measures will rest with the courts.
This reform, once finalised, will bring Tajikistan into line with international best practice, by curbing the powers of the prosecution service, which many argue has been so strong that the judicial process is weighted in its favour.
Nigina Bahrieva, a leading legal practitioner, argues that the change eliminates a major conflict of interest, where state prosecutors currently act as case investigators and also decide whether to make an arrest.
“If the courts are competent to decide the most difficult matter of all – whether a person should be deprived of his liberty – why not allow it to approve arrests?” she asked.
Lawyer Inoyat Inoyatov believes the new code will lead to a situation where both parties in a trial enjoy the same rights, with defence lawyers and prosecutors treated even-handedly in the courtroom.
The criminal procedural code currently in use in Tajikistan dates from 1961, and is seen by experts as long overdue for an overhaul, since much of it is inconsistent with basic human rights principles.
Lawyers and human rights activists have long been pressing for a new code to be finalised. Work started on it in 1996, but was held up over many years because of specific objections to changing the arrest rules.
Mahmadali Vatanov, a member of parliament who helped draft the new legislation, said such conservatism over arrest warrants was typical of the countries that emerged from the former Soviet Union.
In the end, he said, it has always been left to national presidents to override the objections and push through the reform.
“Tajikistan is no exception,” he added. “President Rahmon put an end to the controversies surrounding the new code, especially the part where approval of warrants is assigned to the courts. He called for this to be resolved in his annual address to parliament this spring”.
Inoyatov says the procedures currently in force contravene not only international conventions which Tajikistan has ratified, but also the country’s own constitution. For example, article 19 of the constitution says people are entitled to a lawyer from the moment they are brought into detention.
But in practice this has been interpreted differently, using a looser definition provided by the procedural code where the “moment of detention” is taken to mean the point when the official record of detention is actually filled in. That can mean a gap of 30 or 40 hours or more in which the individual concerned is held for questioning but does not get access to a lawyer because technically, he or she is not a “detainee”.
The new legislation makes it crystal clear that detention begins immediately, as does the right to see a lawyer, who is also entitled to be present at all hearings and interrogations.
If this requirement is implemented on the ground, it should reduce the scope for mistreatment and torture, which human rights experts say happens most commonly during the first 72 hours.
The document also states explicitly that confessions and evidence obtained through unlawful constraints or through deprivation of human rights are invalid and must not form part of the prosecution’s case.
As Inoyatov points out, changing the rules of arrest alone will not solve all the human rights challenges facing Tajikistan at a stroke.
“The court system and criminal law require reform,” he said. “We also have to tackle matters of competence and professionalism among judges; these are often of an unsatisfactory standard. Only then will we be able to tackle human rights observance.”
Among the issues that need addressing, legal experts say the fact that most judges in Tajikistan are appointed by the president makes the judiciary dependent on the executive.
According to Shams Gulmahmadov, a lawyer with a legal consultancy, the result is that judges are susceptible to pressure from political and state institutions.
Another private practice lawyer, who asked for his name to be withheld, is sceptical that change can take place rapidly as the courts which will now be empowered to issue arrest warrants are far from perfect themselves.
“Not all courts are competent. Moreover, like all the institutions of law and order, they are corrupt,” he said. “Thus, just as people used to bribe one lot [prosecutors], they’ll now bribe the others.”
Bahrieva predicts that it will take time before the requirements of the new code become embedded in legal practice. For instance, making courts responsible for sanctioning arrests and similar measures implies they will have more staff to handle these matters. This is not always the case currently, given that some district-level courts in Tajikistan only have a single judge.
“Moreover, the judges, investigative agencies, and lawyers will all have to be trained. It will take some time to teach them how to work with these mechanisms,” she said.
Bahrieva also pointed up possible linguistic obstacles to enforcing the new procedures. A recently-approved law requiring all official documents to be in Tajik could mean that the new code is not available in Russian translation. That will complicate things for anyone used to working from the Russian version of the old procedural code.
Rahmatillo Zoirov, an opposition politician and the chairman of Tajikistan’s Legal Consortium, is pleased that the new code will tip the balance towards the right to a fair defence in court.
“In this regard, the new code fulfils article 92 of the constitution, which states that legal assistance must be available at all stages of the judicial process,” he said. “However, full implementation will mean doing a lot of other things – refining the mechanisms and holding workshops for lawyers, too.”
Whatever the defects in the legal system as a whole, and the obstacles to making the new system work in practice, the interviews which IWPR conducted for this report suggest the legal community in Tajikistan is fairly unanimous in welcoming the new criminal procedural code as a definite step forward.
The bill, which define how criminal cases are dealt with from detention through to trial, was passed by the lower house of parliament on October 15, and will now have to go through the upper chamber before being sent to President Imomali Rahmon for final signature, which is expected to happen early next year.
One of the key changes envisages that prosecutors will no longer have powers to issue arrest warrants and order police searches, wiretaps and seizures of funds and property. Instead, the decision to approve such measures will rest with the courts.
This reform, once finalised, will bring Tajikistan into line with international best practice, by curbing the powers of the prosecution service, which many argue has been so strong that the judicial process is weighted in its favour.
Nigina Bahrieva, a leading legal practitioner, argues that the change eliminates a major conflict of interest, where state prosecutors currently act as case investigators and also decide whether to make an arrest.
“If the courts are competent to decide the most difficult matter of all – whether a person should be deprived of his liberty – why not allow it to approve arrests?” she asked.
Lawyer Inoyat Inoyatov believes the new code will lead to a situation where both parties in a trial enjoy the same rights, with defence lawyers and prosecutors treated even-handedly in the courtroom.
The criminal procedural code currently in use in Tajikistan dates from 1961, and is seen by experts as long overdue for an overhaul, since much of it is inconsistent with basic human rights principles.
Lawyers and human rights activists have long been pressing for a new code to be finalised. Work started on it in 1996, but was held up over many years because of specific objections to changing the arrest rules.
Mahmadali Vatanov, a member of parliament who helped draft the new legislation, said such conservatism over arrest warrants was typical of the countries that emerged from the former Soviet Union.
In the end, he said, it has always been left to national presidents to override the objections and push through the reform.
“Tajikistan is no exception,” he added. “President Rahmon put an end to the controversies surrounding the new code, especially the part where approval of warrants is assigned to the courts. He called for this to be resolved in his annual address to parliament this spring”.
Inoyatov says the procedures currently in force contravene not only international conventions which Tajikistan has ratified, but also the country’s own constitution. For example, article 19 of the constitution says people are entitled to a lawyer from the moment they are brought into detention.
But in practice this has been interpreted differently, using a looser definition provided by the procedural code where the “moment of detention” is taken to mean the point when the official record of detention is actually filled in. That can mean a gap of 30 or 40 hours or more in which the individual concerned is held for questioning but does not get access to a lawyer because technically, he or she is not a “detainee”.
The new legislation makes it crystal clear that detention begins immediately, as does the right to see a lawyer, who is also entitled to be present at all hearings and interrogations.
If this requirement is implemented on the ground, it should reduce the scope for mistreatment and torture, which human rights experts say happens most commonly during the first 72 hours.
The document also states explicitly that confessions and evidence obtained through unlawful constraints or through deprivation of human rights are invalid and must not form part of the prosecution’s case.
As Inoyatov points out, changing the rules of arrest alone will not solve all the human rights challenges facing Tajikistan at a stroke.
“The court system and criminal law require reform,” he said. “We also have to tackle matters of competence and professionalism among judges; these are often of an unsatisfactory standard. Only then will we be able to tackle human rights observance.”
Among the issues that need addressing, legal experts say the fact that most judges in Tajikistan are appointed by the president makes the judiciary dependent on the executive.
According to Shams Gulmahmadov, a lawyer with a legal consultancy, the result is that judges are susceptible to pressure from political and state institutions.
Another private practice lawyer, who asked for his name to be withheld, is sceptical that change can take place rapidly as the courts which will now be empowered to issue arrest warrants are far from perfect themselves.
“Not all courts are competent. Moreover, like all the institutions of law and order, they are corrupt,” he said. “Thus, just as people used to bribe one lot [prosecutors], they’ll now bribe the others.”
Bahrieva predicts that it will take time before the requirements of the new code become embedded in legal practice. For instance, making courts responsible for sanctioning arrests and similar measures implies they will have more staff to handle these matters. This is not always the case currently, given that some district-level courts in Tajikistan only have a single judge.
“Moreover, the judges, investigative agencies, and lawyers will all have to be trained. It will take some time to teach them how to work with these mechanisms,” she said.
Bahrieva also pointed up possible linguistic obstacles to enforcing the new procedures. A recently-approved law requiring all official documents to be in Tajik could mean that the new code is not available in Russian translation. That will complicate things for anyone used to working from the Russian version of the old procedural code.
Rahmatillo Zoirov, an opposition politician and the chairman of Tajikistan’s Legal Consortium, is pleased that the new code will tip the balance towards the right to a fair defence in court.
“In this regard, the new code fulfils article 92 of the constitution, which states that legal assistance must be available at all stages of the judicial process,” he said. “However, full implementation will mean doing a lot of other things – refining the mechanisms and holding workshops for lawyers, too.”
Whatever the defects in the legal system as a whole, and the obstacles to making the new system work in practice, the interviews which IWPR conducted for this report suggest the legal community in Tajikistan is fairly unanimous in welcoming the new criminal procedural code as a definite step forward.
