CABAR.ASIA
On Countering Torture, Impunity and More…
"Every case of torture is complex since there is very strong systemic resistance," say human rights activists from the Coalition against Torture in Tajikistan.
The media began openly discussing torture in Tajikistan 10 years ago. Prior to that, everything that was happening inside the law enforcement system was carefully hidden. The first widely discussed publication by Tajik journalists about torture and cruel treatment was "Investigation or Inquisition", commissioned by IWPR and published in December 2010 in the Asia Plus newspaper.
It had the bombshell effect, and provoked the sharp reaction of civil society, readers, and law enforcement agencies. The outcomes of the publication wrecked the nerves and affected the health conditions of a team of journalists who dared to cover a tabooed topic. The Head of the Organized Crime Control Department Anvar Tagoymurodov filed a lawsuit against the newspaper. The process ended with the withdrawal of the claim. However, the courage of the journalists became an example for others, and since then, this topic is occasionally covered in the Tajik media and discussed in society.
In 2012, the Article "On Torture" was included to the Criminal Code of the Republic of Tajikistan.
It had the bombshell effect, and provoked the sharp reaction of civil society, readers, and law enforcement agencies. The outcomes of the publication wrecked the nerves and affected the health conditions of a team of journalists who dared to cover a tabooed topic. The Head of the Organized Crime Control Department Anvar Tagoymurodov filed a lawsuit against the newspaper. The process ended with the withdrawal of the claim. However, the courage of the journalists became an example for others, and since then, this topic is occasionally covered in the Tajik media and discussed in society.
In 2012, the Article "On Torture" was included to the Criminal Code of the Republic of Tajikistan.
«Rejected Case»
For more than ten years, the case of Khurshed Bobokalonov remains rejected, and so far, there is no information on bringing to justice those responsible for his death.
The death of 33-year-old Khurshed Bobokalonov, a young, talented, promising oncologist, was as ridiculous as it was tragic.
Let us start from the beginning. On June 27, 2009, the country celebrated the Day of National Unity; the center of the capital was heavily patrolled. During this time, Khurshed was returning from the gym with a sports bag in his hands. On the main avenue of the capital, he went to the side of the road to stop a taxi. The police officers tried to stop him with a shout, but Khurshed did not pay attention to it. The officers came closer and rudely demanded to show the contents of the bag, but Khurshed did not obey…
He was pushed into a patrol car by force, as it was later documented, "for resisting police officers and to carry out an examination for alcohol intoxication". When he was brought to the police department of Ismoili Somoni district, Khurshed was already dead.
The news of the Khurshed Bobokalonov's death appeared the next day.
From the conclusion of the forensic medical examination:
The death of 33-year-old Khurshed Bobokalonov, a young, talented, promising oncologist, was as ridiculous as it was tragic.
Let us start from the beginning. On June 27, 2009, the country celebrated the Day of National Unity; the center of the capital was heavily patrolled. During this time, Khurshed was returning from the gym with a sports bag in his hands. On the main avenue of the capital, he went to the side of the road to stop a taxi. The police officers tried to stop him with a shout, but Khurshed did not pay attention to it. The officers came closer and rudely demanded to show the contents of the bag, but Khurshed did not obey…
He was pushed into a patrol car by force, as it was later documented, "for resisting police officers and to carry out an examination for alcohol intoxication". When he was brought to the police department of Ismoili Somoni district, Khurshed was already dead.
The news of the Khurshed Bobokalonov's death appeared the next day.
From the conclusion of the forensic medical examination:
"The death of Bobokalonov was caused by the mechanical asphyxia as a result of the airways filling with vomit mass, as evidenced by the presence of vomit mass in the respiratory airways, acute emphysema of the lungs and heart (Tardieu's spots), a sharp plethora of internal organs, anemia of the spleen, abundant postmortem lividity".
The examination also revealed the following injuries: scratch marks on both legs and knee joints, dorsum of the right hand, left frontal region of head, and on the right of parietal region. The nature of the scratches is moist and gives reason to believe that "they were caused by hitting with hard blunt instruments shortly before death".
The body was handed over to the mother only after repeated addresses to the relevant authorities. Khurshed Bobokalonov's relatives repeatedly claimed in media that during the arrest Khurshed was severely beaten: "His clothes were covered in blood, numerous bruises were visible on his body, his nose was broken, and wounds on the back of his head and chin were bleeding".
Khurshed's mother Saodat Kulieva does not stop fighting and searches justice for many years. She kept her son's clothes covered in blood as material evidence.
The body was handed over to the mother only after repeated addresses to the relevant authorities. Khurshed Bobokalonov's relatives repeatedly claimed in media that during the arrest Khurshed was severely beaten: "His clothes were covered in blood, numerous bruises were visible on his body, his nose was broken, and wounds on the back of his head and chin were bleeding".
Khurshed's mother Saodat Kulieva does not stop fighting and searches justice for many years. She kept her son's clothes covered in blood as material evidence.
According to the official statement of the Ministry of Internal Affairs of Tajikistan, Bobokalonov died from "heart insufficiency and the respiratory airways filling with vomit".
A few days later, on July 6, 2009, the Prosecutor's Office of Somoni district opened a criminal case under the Article "Death Resulting from Negligent Conduct". The proceedings in this case were suspended several times for various reasons. For example, "in connection with the failure to identify the persons involved in Bobokalonov's death". However, the case was resumed repeatedly, after mother's addresses to the Prosecutor General's Office. Various examinations were carried out. The results of these examinations were different from the original examination. The investigative experiments were held. Nevertheless, the guilt of the police officers in torturing and killing Khurshed Bobokalonov was never proved.
After applying all the mechanisms for protecting human rights within the republic, on February 23, 2015, Saodat Kulieva with the assistance of specialists from the Bureau for Human Rights and Rule of Law filed an individual complaint with the UN Human Rights Committee on the fact of torture and cruel treatment against her son, which led to his death.
A few days later, on July 6, 2009, the Prosecutor's Office of Somoni district opened a criminal case under the Article "Death Resulting from Negligent Conduct". The proceedings in this case were suspended several times for various reasons. For example, "in connection with the failure to identify the persons involved in Bobokalonov's death". However, the case was resumed repeatedly, after mother's addresses to the Prosecutor General's Office. Various examinations were carried out. The results of these examinations were different from the original examination. The investigative experiments were held. Nevertheless, the guilt of the police officers in torturing and killing Khurshed Bobokalonov was never proved.
After applying all the mechanisms for protecting human rights within the republic, on February 23, 2015, Saodat Kulieva with the assistance of specialists from the Bureau for Human Rights and Rule of Law filed an individual complaint with the UN Human Rights Committee on the fact of torture and cruel treatment against her son, which led to his death.
"On March 10, 2020, the UN Human Rights Committee, after the procedures for considering an individual complaint by Saodat Kulieva, recognized the fact of torture and cruel treatment by police officers in relation to the victim Khurshed Bobokalonov, and addressed the Tajik authorities with this decision for their action".
Abdurahmon Sharipov
Lawyer
Coalition: Together Against Torture
In 2011, the Civil Society Coalition against Torture and Impunity was established in Tajikistan. It was created as a reaction and intolerance of the civil activists to arbitrariness in torture. The coalition unites over 80 people, representatives of human rights organizations, lawyers, journalists, psychologists and experts.
We spoke with the Head of the Coalition's Legal Aid Group, executive director of the "Mir Prava" NGO Gulchekhra Kholmatova about the provision of legal assistance to the victims of torture.
- The Coalition attaches great importance to the provision of individual legal assistance to the victims of torture and their families. Based on this principle, in 2011, one of the first working groups created under the Coalition was the Legal Aid Group. It includes representatives of public organizations, lawyers and attorneys with practical experience in providing legal assistance. The members of the Group are public organizations such as "Mir Prava", Independent Center for Human Rights Protection, Centre for Human Rights, "Notabene", Legal Initiative and lawyers: partners of the coalition Askar Tursunov, Umed Niyazov, Abdurahmon Sharipov and others.
We spoke with the Head of the Coalition's Legal Aid Group, executive director of the "Mir Prava" NGO Gulchekhra Kholmatova about the provision of legal assistance to the victims of torture.
- The Coalition attaches great importance to the provision of individual legal assistance to the victims of torture and their families. Based on this principle, in 2011, one of the first working groups created under the Coalition was the Legal Aid Group. It includes representatives of public organizations, lawyers and attorneys with practical experience in providing legal assistance. The members of the Group are public organizations such as "Mir Prava", Independent Center for Human Rights Protection, Centre for Human Rights, "Notabene", Legal Initiative and lawyers: partners of the coalition Askar Tursunov, Umed Niyazov, Abdurahmon Sharipov and others.
When we receive information about a possible case of torture from relatives, the media or other sources, we document the message, conduct an initial check with consideration of the resources that the organizations have. Sometimes, the decision to assist is made immediately. If there is enough information to suggest that torture took place, we provide legal assistance ourselves or invite a lawyer.
We explain to the applicant the rules and methods of our work, as well as the risks that may arise in the process. She/he signs a tripartite agreement between her/him, the organization and the lawyer on the provision of free legal aid.
It is important to emphasize that legal aid is provided only in the case of torture and cruel treatment; we do not provide a lawyer based only on the filed charge.
We explain to the applicant the rules and methods of our work, as well as the risks that may arise in the process. She/he signs a tripartite agreement between her/him, the organization and the lawyer on the provision of free legal aid.
It is important to emphasize that legal aid is provided only in the case of torture and cruel treatment; we do not provide a lawyer based only on the filed charge.
Coalition members combine the resources to provide legal aid to the victims of torture. For example, if there are reports of the large-scale human rights violations, the rapid response teams are created. If it is necessary to obtain information from a region where the organization processing the case has no office, another member of the Coalition can often help.
Our work includes a number of activities, such as: documentation of the reports of torture and cruel treatment; provision of legal assistance, including legal support and representation of the interests in public authorities and in court; coordination of legal assistance activities with other organizations, lawyers, experts, media; cooperation with practicing lawyers on raising knowledge in the field of national and international standards for combating torture and cruel treatment; use of international protection mechanisms, including the submission of individual complaints to the UN Human Rights Committee.
In addition, the Legal Aid Group analyses media publications to identify reports of torture or cruel treatment and maintains statistics on the facts registered by the Coalition.
Our work includes a number of activities, such as: documentation of the reports of torture and cruel treatment; provision of legal assistance, including legal support and representation of the interests in public authorities and in court; coordination of legal assistance activities with other organizations, lawyers, experts, media; cooperation with practicing lawyers on raising knowledge in the field of national and international standards for combating torture and cruel treatment; use of international protection mechanisms, including the submission of individual complaints to the UN Human Rights Committee.
In addition, the Legal Aid Group analyses media publications to identify reports of torture or cruel treatment and maintains statistics on the facts registered by the Coalition.
Gulchekhra
Kholmatova
Kholmatova
Who Are People Most Complaining About?
According to the statistics of addresses to the Coalition, people most often complain about torture by the police.
"Over the past five years, according to our statistics, most of the complaints on torture and cruel treatment were filed against police officers at the Ministry of Internal Affairs of the Republic of Tajikistan," says the Head of the Coalition's Legal Aid Group, Gulchekhra Kholmatova.
It is worth noting that torture and cruel treatment most often occur at the time of detention before receiving a court order for arrest.
In 2015, 24 complaints on torture by employees of the Ministry of Internal Affairs were registered, but in 2019, there were already 40 of them. This list also includes other law enforcement agencies, but with significantly lower figures.
In 2015, 24 complaints on torture by employees of the Ministry of Internal Affairs were registered, but in 2019, there were already 40 of them. This list also includes other law enforcement agencies, but with significantly lower figures.
The Shadowy Statistics
As it turned out, there is practically no publicly available statistics on complaints, investigations, prosecutions, convictions and remedies in all cases involving allegations of torture and other forms of cruel treatment.
The open sources provided information only from the reports of the Ombudsman, official reports of the UN Human Rights Committee, and from the website of the Civil Society Coalition against Torture and Impunity in Tajikistan.
The open sources provided information only from the reports of the Ombudsman, official reports of the UN Human Rights Committee, and from the website of the Civil Society Coalition against Torture and Impunity in Tajikistan.
The applicants mainly complain about the actions of the officers of the investigative authorities, who, presumably, unlawfully detained their relatives and used force and other illegal actions against them.
There is no comprehensive information regarding complaints about the possible cases of torture on the website of the General Prosecutor's Office. In turn, the Ministry of Internal Affairs does not officially announce the statistics of complaints against its employees. However, the annual reports of the Ombudsman are published with reference to the figures of these departments.
Statistics by region, which are not published by any government agency, are available in the Civil Society Coalition against Torture and Impunity in Tajikistan.
There is no comprehensive information regarding complaints about the possible cases of torture on the website of the General Prosecutor's Office. In turn, the Ministry of Internal Affairs does not officially announce the statistics of complaints against its employees. However, the annual reports of the Ombudsman are published with reference to the figures of these departments.
Statistics by region, which are not published by any government agency, are available in the Civil Society Coalition against Torture and Impunity in Tajikistan.
According to the Coalition, over the past five years, 35 people were brought to justice in criminal cases for torture and other forms of cruel treatment, including cases of 'dedovschina'. In eight cases on claims for compensation for moral and material harm caused by torture, which were selected by the Coalition as strategic cases, 138,600 somoni were received from state bodies.
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The prohibition of torture is an absolute right in terms of international standards. Torture and cruel treatment cannot be justified for any reason. Freedom from torture is one of those human rights that are indisputable; it cannot be limited or suspended under any circumstances. Any violation that derogates from the prohibition of torture and cruel treatment should be punished in accordance with law. The state should do everything possible to prevent, investigate and punish those guilty for torture and cruel treatment.
Resistance of the System
In 2012, in order to fulfil international obligations, a separate Article 143 (1) "Torture" was introduced into the Criminal Code of the Republic of Tajikistan. However, there was no increase in the number of criminal cases under this Article.
Human rights defenders of the Coalition told about the difficulties they face in providing legal assistance to the victims of torture and cruel treatment.
"Perhaps, every case of torture is complex since there is very strong systemic resistance".
Frequently, the investigation and prosecution authorities ignore the petitions and complaints of lawyers, or unreasonably delay the provision of decision, not observing the terms of the criminal procedure legislation. Lawyers' petitions, as a rule, contain extremely important facts and questions that require urgent clarification in order to establish the truth. However, very often they face a groundless delay in the investigation.
"Perhaps, every case of torture is complex since there is very strong systemic resistance".
Frequently, the investigation and prosecution authorities ignore the petitions and complaints of lawyers, or unreasonably delay the provision of decision, not observing the terms of the criminal procedure legislation. Lawyers' petitions, as a rule, contain extremely important facts and questions that require urgent clarification in order to establish the truth. However, very often they face a groundless delay in the investigation.
- Of course, the biggest problem for us is the persistent lack of effective and timely investigation of complaints on torture, as well as unwillingness to cooperate with lawyers, said Gulchekhra Kholmatova.
In our opinion, the growth of the number of petitions to public organizations for legal assistance is caused by the fact that citizens are not always satisfied with the results of their addresses to law enforcement agencies.
Our experience shows that not all complaints of torture and cruel treatment are brought to trial, and there are many reasons for this: the lack of evidence and independent forensic medical experts, victims' refusal to appeal further due to frustration, stress, pressure, lack of financial and time resources, lack of legal knowledge, covering each other's backs among some law enforcement agencies in certain districts, and much more.
It is a pity that in all this complex system of interaction between state bodies and institutions combating torture and impunity, the ordinary citizens are simply lost.
In our opinion, the growth of the number of petitions to public organizations for legal assistance is caused by the fact that citizens are not always satisfied with the results of their addresses to law enforcement agencies.
Our experience shows that not all complaints of torture and cruel treatment are brought to trial, and there are many reasons for this: the lack of evidence and independent forensic medical experts, victims' refusal to appeal further due to frustration, stress, pressure, lack of financial and time resources, lack of legal knowledge, covering each other's backs among some law enforcement agencies in certain districts, and much more.
It is a pity that in all this complex system of interaction between state bodies and institutions combating torture and impunity, the ordinary citizens are simply lost.
Anatomy of Impunity
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The public organizations cannot independently investigate or punish persons guilty of torture; we address the law enforcement agencies and use existing legal procedures and mechanisms to protect victims of torture. We must remember that law enforcement is the activity of specially authorized state bodies.
Often, for various reasons, the victims of torture and cruel treatment refuse to further appeal against the actions of law enforcement officers, which, accordingly, leads to impunity for the torturers.
Gulchekhra Kholmatova explained that a number of reasons causes this.
"One of the reasons is the length and complexity of the process of the consideration of the cases. Many victims get tired of endless wanderings in various departments. Another reason is the harassment and intimidation of victims, their lawyers and families by law enforcement officials who are accused of torture. This is a significant obstacle since there are no effective guarantees of protection of the victims and witnesses from retaliation currently. The following reason is the victims' fear of torture; afraid of revenge from the alleged torturers, they do not want to fight further.
All this factors lead to ineffective investigation and impunity for the perpetrators of crimes," she says.
Gulchekhra Kholmatova explained that a number of reasons causes this.
"One of the reasons is the length and complexity of the process of the consideration of the cases. Many victims get tired of endless wanderings in various departments. Another reason is the harassment and intimidation of victims, their lawyers and families by law enforcement officials who are accused of torture. This is a significant obstacle since there are no effective guarantees of protection of the victims and witnesses from retaliation currently. The following reason is the victims' fear of torture; afraid of revenge from the alleged torturers, they do not want to fight further.
All this factors lead to ineffective investigation and impunity for the perpetrators of crimes," she says.
Rehabilitation
Nevertheless, the Coalition against Torture achieved some success in its ten years of systematic work. In particular, the Coalition's Rehabilitation Group seeks to ensure rehabilitation for torture victims, providing them with psychological and social assistance.
Unfortunately, the legislation of the Republic of Tajikistan does not provide for specific mechanisms for the provision of rehabilitation services to torture survivors and/or their family members. In May 2018, the UN Committee against Torture proposed a number of recommendations to the Government of the Republic of Tajikistan. In particular, this was the provision with compensation and rehabilitation for torture victims, as well as the right to fair and adequate compensation, etc. However, to date, the recommendation is not yet implemented, noted Gulchekhra Rakhmanova, the Head of the Rehabilitation Group for the torture survivors and/or members of their families. Over the past five years, the Rehabilitation Group provided the greatest possible assistance in regaining independence, physical, mental, social and professional abilities, as well as full social integration for the torture survivors or their families. There are both men and women among them.
There are slightly more men who underwent rehabilitation than women. In 2015, there were six family members of torture victims and four torture victims, but in 2019, 29 family members of victims underwent a rehabilitation course, and the number of tortured persons who underwent a rehabilitation course increased up to 21.
In total, during the period from 2015 to 2019, 175 people underwent rehabilitation: 78 of them were victims of torture and cruel treatment, and 97 were family members of the victims. In total: 83 women, 92 men, of whom 18 were minors (8 boys and 10 girls).
In total, during the period from 2015 to 2019, 175 people underwent rehabilitation: 78 of them were victims of torture and cruel treatment, and 97 were family members of the victims. In total: 83 women, 92 men, of whom 18 were minors (8 boys and 10 girls).
Torture: Why Is It Happening and How to Prevent It?
The important element in the countering torture is transparent reporting of the state, both at the system level in the form of adopted laws, policies and ongoing reforms, and in each individual case of response, investigation and punishment of perpetrators of torture.
Unfortunately, we observe a complete absence or limited reporting from government agencies in practice.
According to experts, the statistics reported occasionally by law enforcement agencies does not demonstrate a real picture of the scale of cases of torture and cruel treatment, as well as the measures taken in this direction.
Doctor of Law Shokirjon Khakimov believes that the problem is rooted in the low level of knowledge and professional training of personnel in the system of law enforcement agencies, especially those carrying out inquiries and investigative actions.
Unfortunately, we observe a complete absence or limited reporting from government agencies in practice.
According to experts, the statistics reported occasionally by law enforcement agencies does not demonstrate a real picture of the scale of cases of torture and cruel treatment, as well as the measures taken in this direction.
Doctor of Law Shokirjon Khakimov believes that the problem is rooted in the low level of knowledge and professional training of personnel in the system of law enforcement agencies, especially those carrying out inquiries and investigative actions.
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Despite a solid regulatory and legal framework, including the implementation of international legal acts, they are torturing to force suspects and accused to confess of committing certain acts. Nongovernmental organizations and specialized international institutions, as well as media, repeatedly drew attention to cruel and inadequate treatment of people by law enforcement agencies. However, the measures taken by the relevant authorized structures turned out to be insufficient.
In addition, according to the human rights activist, inappropriate personnel policies, nepotism, corruption and impunity also contribute to the use of torture and cruel treatment of suspects and accused.
"Of course, the solution to this problem must be achieved consistently and comprehensively. Otherwise, due to the lack of real political will and ensuring the rule of law in this important area of state activity, it is impossible to achieve real success, which undoubtedly negatively affects the international reputation of our state," the source said.
The effectiveness of countering torture and impunity starts with zero tolerance.
"When intolerance to illegal methods of inquiry is fostered by educational institutions that train investigators, police officers and other law enforcement specialists, when a culture of violence and torture rejection is developed in society, and young people are taught to respect others' lives and the rule of law, only then, perhaps, it will be possible to eradicate torture," Khakimov said.
"Of course, the solution to this problem must be achieved consistently and comprehensively. Otherwise, due to the lack of real political will and ensuring the rule of law in this important area of state activity, it is impossible to achieve real success, which undoubtedly negatively affects the international reputation of our state," the source said.
The effectiveness of countering torture and impunity starts with zero tolerance.
"When intolerance to illegal methods of inquiry is fostered by educational institutions that train investigators, police officers and other law enforcement specialists, when a culture of violence and torture rejection is developed in society, and young people are taught to respect others' lives and the rule of law, only then, perhaps, it will be possible to eradicate torture," Khakimov said.