Briefing for human rights seminar organized by the Ministry of Foreign
Affairs of the Federal Republic of Germany in Bishkek, Kyrgyzstan, 22-23
October 2015
This document has been prepared by the following
Central Asian NGOs: the NGO Coalitions Against Torture in Kazakhstan,
Kyrgyzstan and Tajikistan, Turkmenistan's Independent Lawyers Association
(TILA, based in exile in the Netherlands), Turkmen Initiative for Human Rights
(TIHR, based in exile in Austria) and the Association for Human Rights in
Central Asia (AHRCA, based in exile in France), together with Helsinki
Foundation for Human Rights (Poland) and International Partnership for Human
Rights (Belgium).
Torture and other forms of ill-treatment continue to
be of serious concern in all Central Asian countries and impunity of
perpetrators of torture is the norm. Not
one of the Central Asian governments publishes comprehensive statistics on
complaints, investigations and convictions of perpetrators and many victims refrain
from lodging complaints for fear of reprisals or because they do not trust that
the existing system will give them access to justice.
Since January 2015, the NGO Coalition against Torture
in Kazakhstan has registered over 70 new cases of men, women and children who
allege to have been subjected to torture and ill-treatment. In the same period,
the NGO Coalition against Torture in Kyrgyzstan registered around 100 new cases
and the NGO Coalition in Tajikistan registered over 35 new cases.
After visiting Uzbekistan in 2003 the UN Special Rapporteur
on torture concluded that the use of torture and ill-treatment was “systematic“
in that country. Although the absence of
any level of effective public monitoring does not allow for a comprehensive
assessment of the human rights situation, credible reports received by AHRCA
indicate that torture and ill-treatment have become an integral part of the
criminal justice system in Uzbekistan, and are central to how the authorities
deal with critics and dissent. From 2011
to date, AHRCA received over 165 allegations of torture and ill-treatment
during investigation and detention from Uzbekistan, 27 of which were received
from January to October 2015. Due to the repressive nature of the regime, no
independent human rights groups are able to operate in Turkmenistan and it is
impossible to comprehensively study the situation of torture, but activists in
exile have received credible allegations of torture and ill-treatment on a
regular basis. The authorities persistently deny that torture exists and, to
our knowledge, no one has yet been charged under the Article of “torture“ that
was added to the Criminal Code of Turkmenistan in 2012.
For many law enforcement officials within the criminal
justice systems of the Central Asian countries the incentives to apply torture
are greater than the disincentives. For example, while the risk of punishment
for abuse is very small, torture or other ill-treatment open up avenues for
additional income as law enforcement officers and prison personnel frequently
apply torture to extract money from detainees and prisoners. In addition,
Central Asian law enforcement officers continue to be assessed by the number of
crimes they solve, a system that exacerbates the risk that police resort to
torture to obtain a confession to a hitherto unsolved crime.
In all five countries torture mainly takes place
during the first hours or sometimes days of detention when detainees are in
many cases held without access to legal counsel and medical personnel, but
torture cases are also reported from later stages of detention and
imprisonment. Those detained or imprisoned on charges related to national
security or “religious extremism” are at particular risk. In Uzbekistan, for
example, the health of many prisoners serving lengthy sentences on such charges
is known to have deteriorated badly due to ill-treatment and deplorable prison
conditions and cases of deaths in prison have been reported regularly. In
Turkmenistan the authorities continue to withhold information about the
whereabouts of dozens of people arrested and convicted in connection with the
alleged 2002 assassination attempt on former President Saparmurad Niyazov. Many
of them were believed to have been subjected to torture and some reportedly
died in custody.
The NGOs jointly issuing this statement note that the
authorities of Kazakhstan, Kyrgyzstan and Tajikistan have recently pioneered
several positive legislative, institutional and other steps (some of which are
detailed below) that are aimed at combating
torture and urge all Central Asian governments to follow their neighbours’
positive examples. In addition, we urge Kazakhstan, Kyrgyzstan and Tajikistan
to ensure that all legislative steps aimed at ending torture are fully
implemented in practice and that our recommendations (that can be found at the
end of this document) to make newly established intitutions function more
effectively are implemented as a matter of priority.
We believe that all Central Asian states should
urgently address persistent concerns and recommendations by UN human rights
bodies and procedures and local and international NGOs on the following four
topics: Access to legal safeguards in detention, the conduct of medical
examinations, investigations into allegations of torture, and the Optional
Protocol to the Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment (OPCAT) and national preventive mechanisms.
In addition, as a way to demonstrate their stated commitment to combat torture,
we urge the authorities of Turkmenistan and Uzbekistan to issue an invitation to the UN Special Rapporteur on
torture.
Legal safeguards in detention
When Kazakhstan’s new Criminal Procedure Code came
into force in January 2015 Kazakhstan
became the first country in Central Asia to have clarified in its domestic
legislation that key safeguards including access to a lawyer and notification
of family must be in place upon or promptly after apprehension. Kyrgyzstan,
Tajikistan, Uzbekistan and Turkmenistan are yet to implement recommendations to
this effect issued by UN procedures and/or bodies in recent years.
While we commend Kazakhstan for this significant step
we are concerned that the monitoring of the legislation’s implementation
conducted by the NGO Coalition against Torture in Kazakhstan in recent months
has demonstrated that detainees are often not informed of their rights promptly
after the arrest and are usually not given access to legal safeguards before
being entered into the police detention facility. Even after that they not
infrequently continue to be held without access to a lawyer and/or medical
personnel and are denied notification of their family.
International human rights law clearly states that a
person is considered a detainee as soon as he or she is “depriv(ed) of liberty
(…) in a public or private custodial setting which that person is not permitted
to leave at will by order of any judicial, administrative or other authority”
(e.g. Art. 4(2) of the Optional Protocol
to the Convention against Torture). Legal safeguards must then be in
place to provide protection from torture and ill-treatment under any kind of
detention.
Conducting medical examinations in line with the Istanbul Protocol
The strict adherence of forensic experts and other
medical, psychological and psychiatric professionals, who are tasked with
examining detainees, to the principles of the UN Istanbul Protocol can serve as
an important tool to combat impunity.
At the end of 2014 the respective Ministry of Health
in Kyrgyzstan and Tajikistan were the first in Central Asia to have obliged
medical personnel – when conducting examinations of detainees -- to document
torture and ill-treatment in line with principles contained in the Istanbul
Protocol. While these steps are welcome
the human rights groups jointly issuing this statement are concerned that many
detainees in both countries do not have access to medical personnel of the
Ministry of Health. Instead, they are examined by medical personnel who are not
independent of the detention facility where the detainee is held.
The need for an independent investigative mechanism
The five Central Asian countries lack independent
mechanisms to conduct prompt, thorough, impartial and effective investigations
into allegations of torture and ill-treatment, leading to virtual impunity. When Kazakhstan (in 2014), Kyrgyzstan (2013),
Tajikistan (2012), Turkmenistan (2011), Uzbekistan (2013) were last reviewed by
the UN Committee against Torture, the Committee recommended each of them that
they establish such independent investigatory mechanisms.
Victims of torture or other ill-treatment often do not
lodge complaints for fear of their own or their family’s safety. Judges at
remand hearings typically do not ask detainees how they were treated in
custody. Even when injuries are clearly visible or when detainees make
allegations of torture or ill-treatment during remand hearings, judges do not
usually request an investigation into the allegations in most Central Asian
countries. Prosecutors rarely open investigations into torture or other ill-treatment
as part of their supervisory function over the criminal investigation process.
The coalitions against torture in Kazakhstan, Kyrgyzstan and Tajikistan
observed that investigations are usually only instigated when victims, lawyers,
local and international human rights organizations or media exert pressure on
the authorities.
According to the coalitions against torture in
Kazakhstan, Kyrgyzstan and Tajikistan and AHRCA, the examination of torture
allegations is in many cases conducted by the internal security services of the
respective Ministry of Internal Affairs or other law enforcement agencies whose
employees are themselves implicated in the complaint. These internal security
services usually dismiss the allegations as unfounded and, as a result,
criminal cases are opened only in a small number of cases.
In those cases where investigations have been opened
they have not been conducted effectively in the large majority of cases.
Typically, investigators failed to engage in gathering evidence to study the
circumstances of the alleged torture from all perspectives, such as
interviewing witnesses and medical personnel or ordering a forensic medical
examination; they did not interview the victims and they did not carry out
confrontations of police and victims. Instead, investigators often relied on
statements obtained from the alleged perpetrators and their colleagues.
When investigations are led by prosecutors they are
also often not conducted effectively. Prosecutors, like the police, have a
vested interest in achieving a high crime solution rate. In order to achieve
this goal, prosecutors may be inclined to overlook human rights violations
committed by police, such as torture.
In those cases where torture or other ill-treatment
are revealed during court hearings prosecutors have an inherent conflict of
interest. The law envisages that prosecutors carry out both the function of
criminal prosecution and that of supervision over the legality of the
investigative process. Within the function of criminal prosecution, the
prosecutor presents indictments in courts that are frequently based on
information provided by police or other law enforcement agencies. By revealing
violations (including torture) that took place during their investigative
activities, the prosecutor undermines the legitimacy of the collected evidence
and weakens the arguments presented in the indictment.
In all Central Asian countries, lack of transparency
about prosecutions of law enforcement officials for torture or other
ill-treatment exacerbates the problem of impunity.
The OPCAT and national preventive mechanisms (NPMs)
Kazakhstan and Kyrgyzstan are the only Central Asian
countries to have ratified the OPCAT. In recent years UN bodies and procedures
have repeatedly recommended Tajikistan, Turkmenistan and Uzbekistan to also
ratify the OPCAT.
Tajikistan took a noteworthy step regarding the
monitoring of detention facilities when the Monitoring Group, consisting of
Ombudsman Office staff and civil society, was established as part of the
Ombudsman’s Office and started visiting facilities in February 2014. However,
the Group does not have access to all relevant information and records and in
some cases the administration of the detention facility appeared to have been
informed of the Group’s visits in advance. Independent monitoring of detention
facilities is not regulated in domestic legislation and, besides their
participation in the framework of the Monitoring Group, human rights defenders
are not permitted to enter detention facilities to conduct independent
monitoring.
In Kyrgyzstan a fully independent NPM was set up under
the National Center of the Kyrgyz Republic for the Prevention of Torture and
started visiting detention facilities in 2014. The same year Kazakhstan’s NPM,
set up under the Ombudsman’s office, also started its work. However, in order
for Kazakhstan’s “Ombudsman+” model to work adequately, the NPM needs to be
able to operate with more independence from the Ombudsman. NPM members should
have the powers to decide by themselves and with full independence on all
visits they wish to carry out and be able to publish reports immediately after their
visits. Kazakhstan should also adopt a clear legal framework for the NPM in
order to replace the current inadequate provisions that are scattered in
various parts of the legislation.
Recommendations to the government of the Federal Republic of Germany, as
well as its diplomatic representations in Central Asia
• Raise concerns about the ongoing torture and
ill-treatment in a prominent and consistent way with the Central Asian
governments; and use the leverage of Germany as a major European partner of the
Central Asian countries, a leading EU member state, and the holder of the 2016
OSCE chairmanship to insist on the implementation of concrete and effective
measures to address these concerns. In particular, request the authorities of
the region to implement the following recommendations:
Legal safeguards in detention:
• Kyrgyzstan, Tajikistan, Turkmenistan and Uzbekistan
should clarify in their respective domestic legislation that a person is
considered a detainee as soon as he or she is deprived of liberty and amend the
countries’ criminal procedure codes to ensure that they explicitly provide,
from the moment of deprivation of liberty, for all basic legal safeguards such
as access to a lawyer of the detainee’s choice, access to independent medical
personnel and the right to notify a third person. All Central Asian countries
should ensure that these provisions are implemented in practice.
Conducting medical examinations in line with the Istanbul Protocol:
• The respective Ministry of Health of Kazakhstan,
Turkmenistan and Uzbekistan should oblige medical personnel, when conducting
examinations of detainees, to document torture and other ill-treatment in line
with principles contained in the UN Istanbul Protocol.
• All Central Asian countries should ensure that all
other medical personnel also conducting examinations of detainees should also
be obliged to follow the standards of the Istanbul Protocol.
• All Central Asian countries should ensure that
personnel carrying out medical examinations in temporary police detention
facilities (IVS) and investigation
isolation facilities (SIZO) are truly independent from the agencies running the
detention facilities.
The need for an independent investigative mechanism:
• Oblige judges at remand hearings to routinely ask
detainees arriving from police custody how they were treated and to order an
investigation should there be any reason to suspect that they may have been
subjected to torture or other ill-treatment.
• Create and fund an independent mechanism endowed with
sufficient authority and competence to conduct prompt, thorough, impartial and
independent investigations into all allegations of torture and other forms of
ill-treatment. This mechanism should be transparent and accountable to an
independent oversight body.
• Ensure that complainants, their families and civil
society activists are protected against any reprisals as a consequence of their
complaint, and that law enforcement officers are subjected to appropriate
disciplinary or, where relevant, criminal measures for such actions.
• Suspend any law enforcement officer who is under
investigation for having committed acts of torture or ill-treatment, for the
duration of the investigation.
Setting up effective national preventive mechanisms (NPMs):
• Tajikistan, Turkmenistan and Uzbekistan should
swiftly ratify the Optional Protocol to the Convention against Torture and
other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT) and establish
an effective NPM.
• In the meantime, Tajikistan, Turkmenistan and
Uzbekistan should grant unimpeded access to the International Committee of the
Red Cross (ICRC) and expert independent NGOs working to prevent torture, to all
places of detention as well as to conscription commissions and military units.
• Kazakhstan should ensure that the NPM can function
with greater independence from the Ombudsman. The NPM should be granted powers
to decide by itself and with full independence on all visits NPM members wish
to carry out and be able to publish reports immediately after the Mechanism’s
visits. Kazakhstan should also adopt a unified law that covers all aspects of
the NPM’s functioning.
Recommendations relating in particular to Germany’s 2016 OSCE
Chairmanship
• Make the anti-torture message a core element of all
programmes (including those to combat terrorism, radicalization, drug
trafficking and the abuse of cyberspace), where foreign governments provide
training, support or cooperate in other ways with Central Asian government
agencies, in particular law enforcement agencies and the military.
