Tajikistan Needs Tougher Torture Definition

Tuesday, 10 August, 2010

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Azim Fazilov

Despite a number of prosecutions, the legal system in Tajikistan is still failing to adequately address the continuing use of torture in detention, experts say. 

Courts continue to base convictions on confessions made under duress, and victims are reluctant to lodge complaints. One reason for this impunity is current legislation, which contains an unclear definition of torture.

The non-government Tajikistan Bureau for Human Rights and Rule of Law is urging the government to revise the law to that torture victims are afforded better protection and perpetrators are brought to book.

In a statement to mark International Day in Support of Torture Victims on June 26, the group recommended that the authorities introduce a separate legal article defining torture as a specific crime and establish effective mechanisms for investigating every complaint.

Tajikistan is a signatory to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, and the statement urged the government to join the optional protocol to this agreement, as well – which would open the way to giving external scrutiny of places of detention.

The Tajik government acknowledges that there is a problem.

The interior ministry says that over the last three years, 79 police officers have been prosecuted and 264 have been disciplined for “exceeding their authority” – a term that encompasses physical abuse as well as other offences under current laws.

In one recent high-profile case, the Dushanbe city court sentenced three senior police officers to prison terms ranging from ten to nearly 14 years this May.

According to a statement from the judiciary, the three defendants admitted to torturing a detainee accused of drug dealing and to trying to extort 40,000 US dollars from him.

However, legal experts say many more cases go unnoticed because of deficiencies in the legislation, and failure to implement the law, as well as a general lack of awareness about detainee rights.

Leading Tajik human rights activist Nigina Bahrieva notes that the new Criminal Procedures Code which came into force in April includes an explicit statement that confessions obtained by torture or other illegal methods are not admissible.

“But unfortunately, in reality this practice continues,” she said.

Judges all too frequently formulate verdicts solely on the basis of confessions rather than substantive evidence. Despite the risk of confessions being compromised, only a tiny fraction of allegations of abuse trigger formal investigations.

Supreme Court judge Larisa Qobilova said the new Criminal Procedural Code fell down by failing to set out a clear definition of torture.

Like older legislation, the provisions covering mistreatment of detainees use terms such as the catch-all “exceeding one’s authority”, while specific physical abuse comes under the Russian word “istyazat”, which is somewhat softer than “pytka”, the standard equivalent for “torture” as defined under international law.

“In order to actively deter torture, the legislation must be improved and amendments made to the new Criminal Procedures Code,” Qobilova said.

Vyacheslav Abramov, an expert on Central Asian human rights issues based in Kazakstan, agrees that the vague definition of torture contained in Tajik national legislation enables perpetrators to get away with their actions, or face only nominal punishment.

Under current law, those found guilty of abuses that fit the description of torture under international law can face imprisonment, fines, dismissal or demotion in the ranks.

“The law also allows those accused of torture to be amnestied, which runs directly contrary to the UN convention on torture,” Abramov said. “The question of compensation for torture victims also needs to be addressed; it’s a very important element.”

Since Tajikistan has not signed up to the optional protocol to the UN torture convention, Abramov laments “the absence of public scrutiny in places of incarceration and detention, and of a mechanism that would enable unrestricted checks on conditions in such places, so that torture cases could be responded to”.

A district court judge in Dushanbe told IWPR on condition of anonymity that in some cases, judges who acquitted defendants who alleged torture have themselves “come under pressure from the investigative agencies.”

Most cases of assault and torture take place immediately after the suspect is detained and before a criminal case is formally launched.

“Usually, detectives detain a suspect and bring him in to the police station and begin questioning him under the pretext of having a chat. This is the stage at which torture is commonly used,” said a member of Tajikistan’s League of Woman Lawyers, who did not want to be named. “Once a ‘frank confession’ has been obtained as a result of it [torture], the detained is handed over to an investigator.”

By law, it is only investigators who can conduct questioning, and detectives may do so only under exceptional circumstances, when specifically directed to do so. Typically, detainees are not informed they have a right to a defence lawyers even at this early stage.

In 2005, the lawyer’s group conducted the most comprehensive survey to date, in conjunction with the Panorama foundation, interviewing 200 people who said they had been tortured in detention. More than 60 per cent of those surveyed said they were subjected to violence by detectives or investigators. Many spoke of beatings and the use of electric shocks.

Another member of the group explained why it was difficult for detainees to prove they had been tortured.

“When someone is in a detention centre, they don’t have an opportunity to contact anyone apart from the investigator and police officers who question them,” she said. “Once they get access to a lawyer or are released, the traces of torture are either no longer visible or are difficult to prove.”

She explained that if pressed, police could claim the detainee was assaulted by cellmates.

A Dushanbe-based lawyer who wished to remain anonymous outlined the kind of torture allegations he had come across.

“Detainees speak about torture cells in the basement of the law -enforcement agency [buildings] where everything is set up for electric shock torture. Their hair and nails are pulled out, and the traces of torture cannot be detected by forensic medical tests,” he said.

The lawyer explained that since investigations could last several months, by the time the detained person sees a doctor or lawyer, hair and nails will have grown back.

(See Addressing Torture in Tajikistan from July 2009 for more on the routine use of torture.)

Few victims are willing to come forward and raise a formal complaint, but even when they do, they often find their allegations are not investigated thoroughly.

Judge Qobilova said the number of such cases was negligible.

Abramov said detainees who wanted to make an allegation of torture could do so either to the prosecution service or to the trial judge once hearings began.

“In both cases, the complaint should be investigated, but very often the court does not respond to such allegations, while the prosecutor’s office conducts only a superficial investigation,” he said.

The general impression people have is that the law-enforcement agencies are very powerful institutions.

Abramov puts the reluctance to complain down to a mix of fear, distrust of the agencies handling complaints, and general ignorance of the law.

“Many people think that they can’t hold those guilty of torture accountable,” Abramov said. “Moreover, some people aren’t aware that torture is prohibited. Surveys conducted by rights defenders in the [Central Asian] region show that many citizens think police have a right to beat them up.”

Azim Fazilov is the pseudonym for a journalist in Tajikistan..

This article was produced jointly under two IWPR projects: Building Central Asian Human Rights Protection & Education Through the Media, funded by the European Commission; and the Human Rights Reporting, Confidence Building and Conflict Information Programme, funded by the Foreign Ministry of Norway.

The contents of this article are the sole responsibility of IWPR and can in no way be taken to reflect the views of either the European Union or the Foreign Ministry of Norway.