Consideration of the third periodic report
under Article 40 of the
International Covenant on Civil and Political Rights
Uzbekistan
NGO Submission
Submitted to the 98th Session of the UN Committee on Human Rights
Date of Submission: January 2010
TABLE OF CONTENTS
PART I: INTRODUCTION………………………………………………………………………. 3
1.1 Constitutional and legal framework within which the Covenant And
Optional Protocol are implemented …………………………………………………………
PART II: SUBJECTIVE RIGHTS:
4
2.1 Right to Life (Article 6)……………………………………………………………………………
5
2.2 Prohibition of Torture (Article 7) …………………………………………………………….
6
2.3 Prohibition of Slavery and child labor (Article 8 and Article 24)………………… 11
2.4 Right to Liberty and Security of Person (Article 9) ……………………………….. 11
2.5 Right of Detainees to be Treated with Humanity and Dignity (Article 10) …….. 15
2.6 Freedom of Movement (Article 12)…………………………………………………………… 16
2.7 Freedom of Assembly (Article 21) …………………………………………………………… 17
2.8 Freedom of Association (Article 22) ………………………………………………………… 18
PART III: CONCLUDING RECOMMENDATIONS……………………………………….
20
PART I: INTRODUCTION
The Expert Working Group of Uzbek NGOs and human rights practitioners prepared this report to inform the process of consideration for the third periodic report of Uzbekistan by the United Nations Human Rights Committee under the Article 40 of the International Covenant on Civil and Political Rights. Previously Uzbekistan reported on the 83rd session of the UN Human Rights Committee held in March 2005.#
The report covers the events for the period of 2005 to 2009. As for the range of issues, the current report largely repeats the previous 2005 NGO submission regarding the many problems and failures of the Uzbek Government to insure the rights guaranteed by the Covenant persisted.
In 2005 the Committee made twenty substantive recommendations to the Uzbek Government on necessary steps to be taken in order to bring its national legislation and practice in line with the provisions of the Covenant. Regretfully, the State has not made any genuine efforts to follow these recommendations in full. None of the twenty one individual communications against Uzbekistan on which the Committee found violations of the Covenant have been fully implemented by the government since 2004. Instead, Uzbekistan continued suppressing the basic civil and political rights of its citizens, while diverting the attention of the civil and international community to various national programs and conferences, which were high-profile in media, yet superficial in their essence. Torture and ill-treatment in prisons and custody, unfair trials based on forced confessions, impunity of state officials for violations of human rights, non-registration of political parties and NGOs, persecution of any dissent in political and public life, restrictions on freedom of movement, assembly, religion, expression and other violations of basic freedoms have become the regular attributes of the governing regime.
During the reporting period the country and international community also witnessed one of the most violent and ruthless attacks of the government against its own people in May of 2005 in Andizhan. The current position of the government on this issue does not leave any hope for independent investigation into the mass killings, including of women and children. The authorities used this event as another excuse to tighten the grip over the civil society and international organizations operating in Uzbekistan. It has become ever more challenging for NGOs of Uzbekistan to collect data and conduct monitoring of human right violations since 2005.
The report outlines the most pressing areas of concern by human rights NGOs and indicates Uzbekistan’s failure to ensure effective implementation of rights and freedoms protected by the ICCPR under the Articles 2, 6, 7, 8, 9, 10, 12, 21, 22, 24.
The present report comes with an Appendix of case studies on the reviewed articles of the Covenant.
1.1 Constitutional and legal framework within which the Covenant And Optional Protocol are implemented
1 The Constitution of Uzbekistan recognizes the supremacy of international law over national law. This provision, however, is not read to imply the direct applicability of international norms in the domestic legal system. According to the state report#, it merely provides for the legal principle that the Constitution and national laws shall be in accordance with the international law. The authors contend that this principle is not in any away adhered to in practice.
2 For a good example of Uzbekistan’s disregard for international obligations one needs to look at how the decisions of international treaty bodies are followed up. For instance, Uzbekistan has made no progress in implementing the views of the Committee in relation to the twenty one individual communications, adopted against Uzbekistan under the Optional Protocol. The State was found violating fundamental human rights protected by the Covenant, such as: the right to life, freedom from torture and ill-treatment, the right to liberty and security, the right to fair trial, etc. The first view of the Committee was adopted in 2004 in Arutyunyan v. Uzbekistan (No. 917/2000). To date, the state has failed to put in place the legal and institutional framework for implementing the views of the Committee on individual communications. As a result, the government further violates the rights of victims of these communications to effective remedy.
3 The actions of state bodies in practice are also far from the requirements of international law. For one, it is due to the fact that the state organs, especially law enforcement agencies, are in practice governed by an intricate web of by-laws inaccessible to the general public. For instance, even if the criminal legislation formally reiterates the general principles of legality, equality and supremacy of human rights, many of its provisions are couched in very broad terms, or contain „escape clauses”, thus giving large discretionary powers to law enforcement agents. In such cases, the latter go by their internal orders or instructions, which are closed for public scrutiny and challenge. Such unpublished rules, while regulating the rights and freedoms of individuals, do not constitute „law” according to the requirements set by leading international bodies (EHCHR, UNHRC). Such leading international bodies understand “law” as parliamentary statute, accessible and foreseeable, which is written in clear and unambiguous language. In Uzbekistan, such important procedures as arrest, rules and conditions of detention, internal procedures of closed intuitions, such as psychiatric wards, etc. are all regulated by executive decrees or administrative provisions which are often classified and denied access for the general public.
4 The decision of the government to regulate important aspects of the human rights protection system through the use of by-laws led to major institutional reform of the Bar which ultimately affected the rights of individuals to qualified legal aid by independent counsel. In May 2008 the President of Uzbekistan adopted a decree whereby the former National Bar Association was replaced by the Chamber of Lawyers. The language of the decree formally met the demands of the legal profession for independence and self-regulation.# However, less than a month later the Cabinet of Ministers adopted a decree on the organization of the Chamber of Lawyers.# The decree laid out the organizational set up of the Chamber, its management and its decision making procedures. It gave large decision making powers to the Ministry of Justice. According to this decree, the Ministry was empowered to nominate the candidates to head the Chamber of Lawyers; moreover it was instructed to run the first meeting of the lawyers which was to adopt the statue, rules of professional ethics and other governing documents and elect the executive bodies of the Chamber. The Ministry of Justice used its powers to the fullest extent. According to the reports of lawyers, the meeting was convened and chaired by the representatives of the Ministry of Justice and held behind closed doors on September 12, 2008 contrary to any principles of independence, openness, procedural fairness or legality which was proclaimed in the Presidential Executive Order.
Moreover, the government decree established mandatory membership of all lawyers in the Chamber. In the absence of any independent regulation of the Bar, this provision leads to top-down control of all lawyer’s activities by the executive.
In 2009, the government continued to pursue a strategy curtailing any independence among the legal profession or human rights defenders. First, it abolished the provision of the law, which allowed public defenders to represent individuals in criminal and civil hearings. Usually, human rights defenders from NGOs served as public defenders to many indigent defenders or on politically sensitive cases. By introducing the requirement of a degree in law and membership in the Bar, the government monopolized the legal services in the Chamber of lawyers, which is now under its full institutional control.
To further suppress any dissent among the legal profession, the Ministry conducted a mandatory attestation of lawyers to confirm their qualifications for the license to practice law. Not surprisingly, among those who failed this mandatory attestation were the most vehemently outspoken defense lawyers representing individuals in politically sensitive cases.#
PART II: SUBJECTIVE RIGHTS
2.1 The Right To Life (Article 6)
5 The Committee in its General Comment 6 expressed that the right to life “…is the supreme right from which no derogation is permitted even in time of public emergency which threatens the life of the nation …” “The Committee considers that States parties should take measures not only to prevent and punish deprivation of life by criminal acts, but also to prevent arbitrary killing by their own security forces. The deprivation of life by the authorities of the State is a matter of the utmost gravity.” #
According to sixty two written testimonies of eyewitness recorded by the OHCHR in the refugee camp of southern Kyrgyzstan, on 13 May 2005 heavily armoured government troops opened indiscriminate fire on a crowd of civilians, women and children, killing up to 400 people by various estimates. According to the descriptions by eyewitness, the government troops acted in a combat manner, even executing wounded people on the ground. The use of force was grossly disproportional to the danger that the social unrest of civilians presented to the national security. The use of force and firearms was grossly out of line with respect to any international standards prescribed for law-enforcement in similar situations. #
The authors claim that the actions of the government and its troops constituted a grave violation of Article 6 and its positive obligations stating the “supreme duty to prevent […]acts of mass violence causing arbitrary loss of life.”
The government followed up the events of Andijan with repressions against demonstrators, eyewitness, independent journalists, human rights defenders and anyone else who opposed the official position on these events. No actions were taken against the law-enforcement officials responsible for opening indiscriminate fire on the crowd of civilians.
The government should independently investigate the legality of the use of force by their law-enforcement officials. In addition, Uzbekistan needs to review its military and law-enforcement manuals on the use of force and fire arms against civilian populations. The manuals should be made public and available at the official government organs, websites, documentation centres, etc.
The authors of the report are also concerned by the instances of death in custody. The Covenant requires that a person who is in custody has to be protected by the State by appropriate measure. The Committee stated that “a state party takes on the responsibility to care for their life by arresting and detaining individuals”.# The State has to organize its detention facilities in such a way that it knows about the state of heath of the detainees and of any dangers to his life. The state report in section 114 indicated that in the period of 2005-2007 there were 3 cases of deaths. It is reported that there were suicides by hanging. This number cannot be independently verified. The state failed to indicate in its report what were the circumstance of the deaths, who was held responsible and what compensations were paid to relatives. According to NGO reports the numbers of death in custody are much higher. It is alarming that the deaths in custody are not independently investigated and not recognized as the state’s responsibility.
6 In 2005 Concluding observations to Uzbekistan, the Committee recommended that the State should make information on the criminal justice system accessible to the public, including the data on the prisoners sentenced to death and executed. The Sate was also urged by the Committee to change its practice of withholding information on the details of executions of prisoners sentenced to death from their relatives, including their burial places. Although the state presented some numbers in its replies to the Committee on the list of issues, it did not mention what institutional and legislative steps have been taken to make this information public on a regular basis. The authors argue that any information on the criminal justice system is still hard to obtain from the law enforcement agencies. The state also did not specify whether the relatives of executed prisoners have been informed of the burial places of burials or dates of execution.
2.2 Prohibition of Torture (Article 7)
7 Definition of torture
In its previous Concluding Observations on Uzbekistan report, the Committee recommended that the State amend the provision of criminal law relating to the crime of torture in line with the requirements of Article 1 of the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT).
The definition of “torture” in Article 235 of the Uzbek Criminal Code remains narrower in its language and scope than the UNCAT Article 1 definition of “torture.” . Uzbek definition does not include cases when torture occurs “…at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity”. Such limitation leaves out cases of torture and ill-treatment occurring at the hands of personnel in other closed institutions, such as: military barracks, psychiatric wards, hospitals, orphanages, and centers for juvenile delinquents, state retirement facilities, etc. #
Furthermore, the definition of torture in Article 235 of the Criminal Code of Uzbekistan suggests that torture or similar ill-treatment can be inflicted only on “…a suspect, accused person, witness, victim or other party to criminal proceedings, or on a convict serving sentence, or on close relatives of the above”. On another hand, articles 1 and 4 of the Convention state that torture or similar ill-treatment may be inflicted on any person, which refers not only to persons involved in the criminal justice procedure.
8 Practice of torture
Despite the disagreement of the government with the term “systematic” used by the UN Special Rapporteur on Torture Mr. Theo Van Boven to describe the practice of torture in Uzbekistan, the study of current practice confirms the systematic nature of torture in the country. #
The study showed that for the most part, torture occurs during the first 72 hours of police custody prior to the appearance before the judge on detention hearing. This period of time the victims are most vulnerable as they are often held incommunicado without any contact to the outside world.
Another observation is that torture is used indiscriminately against persons regardless of gender, age, health or social status who happen to find themselves in the orbit of criminal justice institutions. It has to be noted that the indigent population, in comparison with the wealthy class of citizens is disproportionately susceptible to torture as they have no means to buy their way out of detention by bribing the police. Thus, corruption and extreme poverty of the population fuel the continuing practices of torture.
The situation is different in politically motivated cases relating to religious fundamentalism, extremism, terrorism and other crimes against the state. Defendants on these cases are held incommunicado for much longer periods of time, some without ever having contact with an independent lawyer or family member. During their detention they are tortured and ill-treated regardless whether they have given confessions to the investigators or not.
The study identified the following most common practices of torture and ill-treatment:
Prolonged Beatings, using fists, rubber clubs, plastic bottles filled in with water or sand, metal or wooden sticks
Suffocation with gas masks or plastic bags
Burning the hair on the body or parts of the body
Cutting or damaging parts of the body with a knife or similar objects
Rape or sexual harassment
Shackling and binding
Deprivation of food or sleep
Denial of access to bathroom facilities
Denial of medical services
Pressure by detaining family members and relatives on trumped-up administrative or criminal charges
Threats to kill or to subject the victim or his/her family member to long-term imprisonment
Denial of space and time for accomplishing prayers and observation of other religious practices
Instigating physical harassment and attacks from other inmates. #
The personal accounts of victims who were subjected to these and other methods of torture are well documented in the 2007 Human Rights Watch Report “Nowhere to Turn. Torture and Ill-treatment in Uzbekistan”#. Here are some of the examples:
Mansur M. described several beating methods used by National Security Agents to torture him after his arrest in early 2006:
“ “To beak ply wood” – I was constantly hit in my chest three nights in a row. On the fourth day, even light touching on my chest induced a very painful feeling in the inner organs.
“Horse shoes” – They put me on the bed with my hands tied up and started to hit me in y heels. Five minutes later I started to feel it in my head, it seemed that I was beaten in my head. Afterwards, I could not walk.
“Northern aurora” – My hands were tied up and I was sitting on a chair. Then they started to slightly hit my head. First I felt a headache, then everything looked red, it seemed that the blood was filling my eyes. A few moments later (I lost control of the time) I started to see black and white stripes. It even seemed that I was losing consciousness for a second. After a few moments I could not feel my body ( I was no longer in control of my body). It seemed that my entire body was squeezed in my head which was suffering a severe headache. . . . My brain was working properly but I could not feel my body. The most awful feeling, though, started the next day, when I woke up and could feel my body but not my head.” # Prison letter by Mansur M., on file with Human Rights Watch.#
Mother Ruquia R. witnessed the torture of her son:
“I saw my son on the floor. He was lying on his side. Two or three men were sitting on him so that he was unable to move. Several others were beating him with a truncheon on the soles of his feet. His legs were on a chair. . .” # Human Rights Watch interview with Ruqia R., March 1, 2007.#
The detainee Alisher A. signed confession after 2 days of torture. The police took him to the room to see the breaking of his “religious leader”:
“E. was sitting on a chair. He was naked. He was connected to electronic wires. [] The wire was connected to E.’s nipples and genitals. His chest was blue. He had bruises. He was hardly able to speak. He was sitting on a chair with armrests. His arms and his legs were fixed to the chair.# Human Rights Watch interview with Alisher A., March 1, 2007.#
Uchqun U. witnessed how two cell mates raped a young man in his cell during the night:
“There was this young Uzbek, who was stripped and raped by two other people in the cell for the whole night they kept him naked and raped him several times. Then the next day they wrote a protocol that he fell down and transferred him to a different place.”
Uchqun took this as a warning for him because the investigators threatened him that the same might happen to him if he does not tell the truth. “They told me, you are next to be raped tell us the truth! I was so scared and terrified”# Human Rights Watch interview with UchqunU., June 12, 2007.#
Twenty-four-year-old Mirzo M. describes a slightly different method of scaring detainees:
“As a means of psychological pressure, the most senior of those questioning me showed me various pictures of people who had been beaten up: someone who was beheaded, and others. They said that if you don’t cooperate, then you will also be in the same situation, the same fate awaits you.” # Human Rights Watch interview with Mirzo M., March 1, 2007.#
9 Impunity and Lack of Redress for victims of torture
The Committee in its General Comment 20 to Article 7 of Covenant expressly stated that the complaints on torture “must be investigated promptly and impartially by competent authorities so as to make the remedy effective. The reports of States parties should provide specific information on the remedies available to victims of maltreatment and the procedure that complainants must follow, and statistics on the number of complaints and how they have been dealt with.”
According to the law, complaints on torture can be brought directly to law enforcement agencies (police, National Security, prosecutor’s office), which after preliminary review of facts of the complaints have to make a decision whether to open the criminal case or to deny the request for criminal investigation. This decision can be appealed to all the higher instances of the law enforcement agency up to the General Prosecutor and further to the court of general jurisdiction from the first to the third instance (review of legality). These institutions do not provide for independent investigation. The state argues that it put in place various mechanisms to ensure that the complaints of torture are handled with due care. However the practice shows that impunity for the perpetrators of torture is as systematic as the torture itself. Even the official statistics below show how insignificant the rate of prosecution is in comparison to quoted numbers of allegations.
Year
Number of registered complaints Number of criminal cases opened
2003 544 4
2004 457 3
2005 270 3
2006 180 6
2007 189 13
2008 104 9
TOTAL: # The numbers are taken the following documents: 1) Third Periodic Report of Uzbekistan to UNHRC on ICCPR, para.N453; 2) Replies to the List of Issues (CCPR/C/UZB/Q3) pp. 15, 17; 3) HRW“Nowhere to Turn. Torture and Ill-treatment in Uzbekistan”, footnote 11, p.60.# 1744 38
In its replies to the Committee, the state party indicates that over the period of 2004-2008, in total 45 law enforcement officials were prosecuted for the crimes of torture and ill-treatment. The total of 1744 complaints over six years resulting in 38 criminal cases and 45 convictions give the rate of prosecution as being slightly over 2%. These numbers demonstrate nothing but the government’s blunt disregard for the victims’ rights to remedy and its positive obligations to investigate and punish torture.
As for the quality of statistics, it is difficult to verify the numbers provided by the government as the procedure for registering and collecting data on torture is not transparent and remains closed for public access. In addition to this, the overwhelming environment of fear, oppression and despair surrounding the victims of torture prevent them from openly speaking out and reporting on their cases. The official statistics, therefore, grossly misrepresent the scope of torture, as the number of complaints on torture is far, far greater than the reported 1744 according to human rights monitors.
It should be noted that over the last years, it has become extremely challenging and at times dangerous to collect and monitor the facts about torture and ill-treatment, to criticize such practices and to identify the alleged perpetrators. Victims of torture, their families, human rights activists, journalists and lawyers have been subjected to various threats and persecutions.
10 The government in its replies to the Committee also indicated that out of 45 law enforcement officials who were prosecuted for the crime of torture and ill-treatment, 13 were amnestied according to the amnesty laws. The use of amnesties for the crime of torture is contrary to the requirements under Article 7 of the Covenant. The Committee has noted in its General Comment 20 that “[a]amnesties are generally incompatible with the duty of States to investigate such acts; to guarantee freedom from such acts within their jurisdiction; and to ensure that they do not occur in the future.” Uzbekistan should amend its legislation to prevent the use of amnesties and statute of limitations for the crime of torture.
11 The insignificant level of prosecution of torture perpetrators and resulting impunity effectively undermines the rights of victims for reparation, rehabilitation and adequate compensation.
Civil law legislation provides for general provisions on obtaining compensation from the state when the harm sustained by individuals was caused by state agents. These provisions, however, do not apply to torture victims, as the civil courts will not hear the case without the results of the criminal trial. Thus, the national legislation does not provide for effective civil compensation separate from the criminal prosecution.
The state also lacks any system of rehabilitation for the victims of torture. Rehabilitation centers in the administrative centers of each region and district provide assistance to former prisoners with employment, health and re-socialization issues, but do not address specifically the issue of post-torture rehabilitation.
12 Non-admissibility of evidence obtained through torture
In the previous session the Committee raised the concern about the high number of convictions based on confessions made in pre-trial detention that were allegedly obtained by methods incompatible with article 7 of the Covenant. The Committee noted that the positive resolution of the Supreme Court prohibiting the use evidence obtained in violation of criminal procedure be reflected in the criminal law governing the procedure of criminal investigation and prosecution. The Committee recommended that Uzbekistan should proceed with the necessary legislative amendments to ensure full compliance with the requirements of articles 7 and 14 of the Covenant.
Since 2005, the government of Uzbekistan has not made any noteworthy efforts to change the practice of courts basing the final decisions on criminal charges on tainted evidence. None of the government reports to the Committee, such as the Comments of Uzbek government to the Concluding Observations in 2006, The Third Periodic State Report, nor the replies to the list of issues contain any new information on the measures taken by the government to address the problem. These reports refer to the outdated information regarding the Supreme Court Resolutions of 2004 which had no impact on the practice whatsoever.
The government failed to provide neither any statistics on the number of judicial decrees issued by courts on violations of criminal procedure and rights of defendants during pre-trial investigation by police, nor information on the number of cases where the defendants raised the issue of non-admissibility of evidence due to torture and resulting decisions of judges.
The authors assert that following the Andijan events the situation of torture and consequently the use of evidence obtained through it had dramatically deteriorated. According to the Human Rights Watch report, in none of the ten trials monitored in the aftermath of Andijan events from 2005-2007, did a judge refuse to admit as evidence a confession or statement that, according to the defendant’s court testimony, was coerced under torture.#
2.3 Prohibition of slavery and child labor (Article 8 and Article 24)
13 The NGOs continue to report on the alarming practice of using child labor in harvesting cotton in Uzbekistan. Each year from mid September to mid or late November, secondary school and academic lyceum pupils of 13-14 years old, as well as college and university students are involved in harvesting and collecting cotton. Some children are involved during the process of sowing in spring in addition to harvesting in autumn, which leads to no-school breaks of up to 16 weeks. The official rate of payment for 1 kilo of cotton is 64 Uzbek sums (approximately $ 0.05 US cents). Children do not receive any payment for their labor.
The authors of the report argue that the working and living conditions of children involved in cotton picking often amounts inhuman treatment. Each child is obliged to pick 50 kilos of cotton every day if it is the first harvest. For the second harvest, the daily obligation of cotton picking is 30 kilos. This is a very hard work for a child to accomplish in a day. Many children fall ill as a result of harsh conditions of labor and the exposure to chemicals used in harvesting cotton. The medical aid available at labor sites is not of adequate quality. Parents may be informed of any sickness of their children only when their health deteriorates to such an extent that they are unable work. The children often suffer from work accidents because safety requirements are not observed. According to independent studies conducted by medical personnel half of the children involved in cotton harvesting fall sick with various types of diseases.#
During the harvesting period, the children reside in class rooms of the schools in working villages. Children are required to bring folded bed from home; otherwise they will sleep on the cold floor. Every class-room usually serves 30 girls or boys. Boys and girls are kept separately. The waking time for children in the cotton field is 5 or 6 o’clock in the morning, and time for going to bed is 9 or 10 o’clock in the evening. There is no heating in places where the children sleep. Children use cold water for personal hygiene and to wash clothes. In many places children do not have access to clean drinking water. Sometimes children have to go to the houses of the local people to take a hot shower for payment. The food given to children in the cotton fields three times a day is nutritionally poor. Children are cut off from any entertainment means and have no access to TV-sets, radio, internet, books unless they bring those with themselves.
The only way of exemption from the requirement to be involved in the cotton picking is the medical waiver based on health conditions obtained from the district or city hospital’s or doctors’ council. People who want to save their children from cotton fields often bribe the doctors to get such waivers.
While the Uzbek government has taken legislative measures to protect children from economic exploitation and from performing any work that is likely to be hazardous or to interfere with the child’s education or be harmful to child’s health or physical, mental, spiritual, moral or social development, it failed to take administrative, social and educational measures to ensure the implementation of the existing legal norms. As a result, many regional administrations routinely use children to help meet central government-imposed quotas for annual cotton production.
2.4 Right to Liberty and Security of Person (Article 9)
14 Incompatibility of legislation
The part 1 of the Article 9 on prohibition of arbitrariness is directed both towards the national legislature and the organs of enforcement. It is not enough for deprivation of liberty to be provided for by law. The law itself must not be arbitrary. The authors argue that the national legislation governing arrest and detention is not in compliance with the Article 9 as it is unpredictable, unjust, and disproportionate to the stated goals, ultimately leading to the practice of indiscriminate restrictions to individuals’ right to liberty.
a) Arrest
15 According to the Article 221 of the Criminal Procedure Code (“CPC”) a law enforcement officer can apprehend a person, on a suspicion of having committed a crime: 1) during or immediately after committing a crime; 2) if eyewitness or victim of crime directly identifies a person; 3) if evidence of crime is discovered on a person, or on his clothes, with him or in a place of his residence; 4) when an attempt to flee, or in absence of permanent place of residence or when the identify of a person is not established.
An arrested person can be held in police custody as a suspect without criminal charge for 72 hours and sometimes up to 10 days in exceptional circumstances upon the decision of the prosecutor.# This period of time is prima facie unacceptable by any international standards, including Article 9 of the Covenant. Moreover, the legislature does not specify what those exceptional circumstances may be and fails to clarify the procedure for establishing them. It is also not provided in the law for a person to independently challenge the grounds of arrest and suspicion separate from the hearing on pre-trial detention. As discussed below, the pre-trial detention hearing deals only with the legality of detention and excludes the consideration of legality of arrest.
Another alarming provision is the Article 228 of CPC, which provides for an arrested person to be held in the office of the law enforcement agency, although it is not recognized as a designated place of custody. The provision does not specify the circumstances under which an arrested person can be held in the office rooms. This provision is heavily abused in practice when the persons are held in the police office rooms for unlimited periods of time without any registration.
b) Pre-trial detention
16 Similar to many jurisdictions, Uzbek criminal procedure allows the use of preventive measures to reach the following objectives: to ensure that a person does not flee from investigation or trial; to prevent continuation of the criminal activity; to prevent a person’s interference in establishment of truth on a criminal case; and to ensure execution of verdict.#
According to the CPC Article 236, detention as the most restrictive measure is used when there is a “…reasonable ground to believe that a defendant will escape from preliminary investigation or trial solely due to gravity of committed criminal offense.” The language of this provision contradicts the notion of presumption of innocence and implies that the mere fact of the criminal charge in a grave offense, punishable by imprisonment of more than 5 years, shall presume that the defendant will likely to escape. This language failure reflects a general prosecutorial nature of the criminal justice system and, most importantly, the presumption of detention merely due to nature of the criminal charge.
Article 242 of CPC specifies that the pre-trial detention (“PTD”) can be applied to a defendant or a suspect before or during trial for: 1) an intentional offense punishable by imprisonment of more than 3 years or a negligent offense punishable by imprisonment of more than 5 years. Part two, of this article indicates that in exceptional cases, the detention can be used for intentional or negligent offenses of less gravity, punishable by imprisonment of less than 3 years or less than 5 years correspondingly, if one of the circumstances below applies:
Defendant has escaped from investigation
Identity of a suspect is not established
Defendant has violated a previous preventive measure
Defendant’s or suspect’s place of permanent residency is outside of the country
Offense is committed during the imprisonment for another crime.
Given legal framework sets a very low threshold for resorting to pre-trial detention as a preventive measure, because according to it, far too large number of offences become eligible for the use of detention. No provisions include proportionality, exceptional use and review of individual circumstances as governing principles in the determining the need for pre-trial detention.
In view of the above, the procedure for determining the applicability of detention merely comes to the establishment of the following facts:
firstly: eligibility for PTD, i.e. if the offense under which the charges are brought against a defendant falls within the group of offences, specified in part 1 of Article 242 of CPC;
secondly: if positive, then whether there is reasonable ground to believe that a defendant may escape, according to the Article 236 of CPC;
thirdly: if negative, then whether there are any of the circumstances, specified in part 2, of the Article 242, exists in relation to a defendant or a suspect.
The authors argue that this determination procedure in practice most certainly results in the outcome of detention. As previously indicated, it is due to a large number of crimes, which are automatically eligible for PTD, and on most of them it is presumed that the defendant will likely escape due to grave nature of the charge. These concerns persisted even after the introduction of the judicial sanctioning of arrest.
c) Judicial sanctioning of detention
17 On January 1st, 2008 Uzbekistan introduced the judicial sanctioning of pre-trial detention. The procedure albeit formally resembles the institution of habeas corpus but fails to adhere to its principles and objectives and in effect is incompatible with the requirements of the Article 9.
The Committee noted that the judicial review of the lawfulness of detention under the Article 9 should not be limited only to compliance of a detention with domestic law but must include the possibility to order release if the detention is incompatible with the requirements of the Covenant. # The court must have the power to review the individual circumstances of the detention and its proportionality. Thus, the reviews must be real, and not merely formal, in their effects.# The Committee established that the pre-trial detention should be applied as an exception together with the authority to make release dependent on the necessary guarantees, including bail. # Mandatory detention is incompatible with the right to habeas corpus.# In Uzbekistan these and other requirements under Article 9 are not upheld in law and in practice.
18 The Article 243 of the CPC on judicial sanctioning of detention contains the following violations:
contrary to Article 9, in combination with Article 14, the decision of the judge on pre-trial detention is held in a closed hearing; there is no justification to deny the public access to this type of hearing; on the contrary to ensure accountability of the criminal justice system the government must amend its legislation to make these hearings to public;
the law indicates that a defense lawyer takes part in the hearing on detention “if he has been assigned to the case”, thus making the presence of the legal counsel for the defendant to be conditional rather than mandatory; a right to legal counsel is an indispensable part of the fair trial requirement including for the hearings on remand; it is absolutely essential that the presence of a defense lawyer be made mandatory for the pre-trial detention hearings in Uzbekistan, including provisions to accommodate the right to prepare the adequate defense;
the law fails to prescribe the guidelines on the decision-making procedure to determine the need for detention; no standards of reasonableness, proportionality, necessity and exceptional nature of detention are indicated as principles governing the judge’s decision;
the law fails to clearly define the scope of issues to be considered by the judge during the pr-trial hearing; for instance, the judge does not look into the legality of arrest or its duration; there is no mentioning on the actions of a judge in case the period of 72 hours of custody is violated;
contrary to Article 9 or any international standards, the judge has only the following powers:
(i) to order pre-trial detention; (ii) to refuse sanctioning of detention; or (iii) to postpone the custody for additional 48 hours “to allow parties to present additional information to support or to invalidate the grounds for detention”;
the judge is not empowered to immediately release the defendant; the decision goes to the prosecutor for immediate execution; the law does not specify how “immediate” the execution of release is, leaving too much discretion in the hands of the prosecutor;
the judge does not have any arsenal of alternatives to detention, including bail.
The law does not guarantee the procedural impartiality of the judge to prevent the same judge hearing the decision on detention and on the criminal charge.
One of the main deficiencies of the new law on judicial sanctioning of arrest is that the courts are not empowered to consider how well-founded the criminal charges are or reasonableness of suspicion in having committed a crime. The prosecution is not under obligation to present any evidence to justify the given criminal charges. As a result, the role of courts, without the power to look into the adequacy of given criminal charges to the evidence available at hand, is limited to mere establishment of matters of fact and observance of formal legal requirements.
19 Incompatibility of practice
The Uzbek NGOs report that the arbitrary arrests continue to be widespread despite the novelties in the criminal legislation. The most common problem is the violation of the duration of custody. The period of 72 hours is almost never observed in practice due to the absence of adequate and verifiable procedures of registering the time of arrest. The actual duration of restriction of a person’s liberty, therefore, is much longer in reality than the required 72 hours, because the police often abuse its powers to timely register the arrested persons.
Another alarming practice is holding persons in police stations as witnesses without registration while questioning them on matters relating to criminal cases. After getting initial statements from them, they become charged as suspects or defendants. During such periods of unacknowledged custody, persons are held without any access to legal or medical assistance, food, water, basic necessities and are usually subjected to torture and ill-treatment. It is not possible to record these kinds of violations in progress, as the police stations are closed for any outside monitoring. The allegations that the police may be holding individuals in their offices are bluntly denied as these people are not registered as ever entering the police stations.
The courts through PTD hearings do not serve as an additional safeguard to prevent these problems in practice, due to limited powers and the scope of the determination procedure. Thus, it does not remedy the problems of pro-longed or unacknowledged custody, unreasonableness of suspicion or criminal charges, etc.
The authors conclude that, regretfully, there are no official statistics on the total number of arrests, pre-trial detention requests submitted by prosecution to courts, sanctioned pre-trial detention orders, number of unlawful detentions and amounts of compensation paid to the victims to objectively demonstrate the ineffectiveness of the existing measure of judicial sanctioning of arrest in Uzbekistan to further the protection of human rights in the country.
2.5 Right of Detainees to be Treated with Humanity and Dignity (Article 10)
20 The prison population in Uzbekistan was reported as approximately 39 000 inmates in 53 prison facilities.# National and international organizations report that the conditions in prisons remained poor and even life threatening. According to the 2008 US State Departments report on Uzbekistan: “Tuberculosis (TB) and hepatitis were endemic in the prisons, making even short periods of incarceration potentially life-threatening. Prison officials stated that approximately 1,000 inmates were infected with TB.” Due to lack of access to independent monitors it is difficult to verify the official statistics.
The Committee in its General Comment 21 on Article 10, noted that “ [t]reating all persons deprived of their liberty with humanity and with respect for their dignity is a fundamental and universally applicable rule. Consequently, the application of this rule, as a minimum, cannot be dependent on the material resources available in the State party. This rule must be applied without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status”. The Uzbek human rights group report that the prison authorities hold political prisoners and those convicted of membership in banned religious extremist organizations in specially demarcated sections of prisons and subject these prisoners to harsher conditions and treatment than other prisoners. Their rights, such as the right to correspondence, the right to receive food and other necessary hygiene items from home are widely restricted. For instance, letters and other written communications are widely censored and often do not reach the recipients. Food and hygiene items, addressed to the religious and political prisoners by their family, although admitted, are not received by them. #
The religious and political prisoners are forced to write official letters of apologies addressed to the President and the people of Uzbekistan. To prove their contrition they must sign a pledge to cooperate with the secret service and police after being released by reporting on their colleagues and relatives. Such pledges become a condition for these prisoners to be released under amnesty laws. There were also reports that the authorities did not release such prisoners at the end of their terms by accusing them of additional crimes and claiming that they continue to be danger to society. There was no recourse to judicial review in such instances.
21 The Committee noted that “No penitentiary system should be only retributory; it should essentially seek the reformation and social rehabilitation of the prisoner.”# This standard along with other guarantees under Article 10 refers to all persons deprived of liberty. The conditions of prisoners sentenced to long-term or life-time imprisonment must also be scrutinized on the subject their compatibility with Article 10. The authors are concerned that the recent changes in the legislation, when the death penalty was substituted by the life-time or long-term imprisonments set too harsh conditions for this type of prisoners contrary to Article 10.
For instance the prisoners for life-time and long-term imprisonments are eligible to apply for pardon only after 25 and 20 years respectively. Given the strict conditions under which these prisoners are detained, these long periods of imprisonment before any chance of early release is granted defeat the purpose of reformation and social rehabilitation and is contrary to the principles of humane treatment and respect for human dignity.
The possibility of pre-schedule submission for pardon may be granted by prison authorities, who have a right to determine “…whether the prisoner has risen firmly on a way of correction, whether he has broken the established prison internal order, whether the prisoner holds honest attitude to work and training, whether the prisoner takes part active participation in educational activities in the prison”. In conditions of total isolation of these prison facilities and absence of any independent oversight, these discretionary powers are subject to abuse.
The life-time or long-term prisoners who are detained under the strict regime, are allowed per year only 1 visit by the family, 1 parcel, 1 telephone call, 1 printed material. To increase these benefits to 2 times per year, except for the family visit, which remains once a year, the prisoners need to wait for 10 years, if the prison administration confirms that they have no record of violations of prison regulations during the 10 year period.
The authors conclude that the conditions of life-time and long-term prisoners amount to inhuman and degrading treatment. Absence of public oversight and accountability, wide discretionary powers of prison administration make it difficult to assess the real scope of violations occurring behind the walls.
22 The Committee following its concern at the lack of independent and transparent scrutiny of prison facilities established that the states “should institute a system for independent inspections of detention facilities, which should include elements independent of Government so as to ensure transparency and compliance with article 10.” #
After long negotiations with the government, on March 11th, the International Committee of the Red Cross (ICRC) resumed visits to detention facilities under the responsibility of the state agency on prisons with Ministry of Internal Affairs for a six-month trial period. Prison monitoring had been suspended since December 2004. After the end of the trial period in September 2009, the ICRC has since submitted a report with its conclusions and recommendations to the government for its consideration. It is not announced whether a new agreement extending to 2010 has been reached between the government and ICRC.
On single occasions the government also permitted representatives from the German Konrad Adenauer Foundation and the Bukhara-based Medical to undertake limited monitoring of some prison facilities in 2008. In general, however, the penitentiary system in Uzbekistan, including the pre-trial detention centers and custodies run by the Ministry of Interior and the National Security Service remain outside of any independent oversight. The periodic visits of representatives of the General Prosecutor’s or the office of the Ombudsman to prisons are not be expected to be impartial and thorough.
2.6 Freedom of Movement (Article 12)
23 Article 28 of the Constitution states: “Citizens of the Republic of Uzbekistan have the rightto liberty of movement throughout Uzbekistan and to enter and leave the Republic, subject to the restrictions established by law”. Under the 1995 Cabinet of Ministers Decision No 8, Uzbekistan still retains the complicated and bureaucratic system of exit visas. Citizens intending to travel abroad apply to the office of the Ministry of Internal Affairs in their place of residence. The office in question processes the application within 15 days and endorses the passport with a stamp authorizing travel abroad, valid for two years for temporary trips out of the country.
In its 2005 Concluding observations for Uzbekistan, the Committee recommended that “The State party should abolish the requirement of an exit visa for its nationals.” Five years later the government regulation on exit visas is still in place. According to the state report numbers, 198 people have been refused the exit visas from 2005 to 2007. The legal grounds for refusal are indicated in the government decree, such as: possession of state secrets, contractual obligations, issuance of criminal proceedings, status of a dangerous recidivist, administrative supervision by police, non-fulfilment of court order, civil action, military service. According to these most of human rights or political activists are likely to be denied exit visas, due to various criminal or administrative persecutions which many of them have been subjected to. The government fails to present reasonable explanations on the need for exit visas that would be necessary and compatible with the Articles 12.
Some travel inside the country is also tightly monitored and registered by the Uzbek authorities at the traffic police, security and customs check up points and block points on the borders among different provinces of the country and at the entrance to large cities. The Uzbek citizens crossing such block points are required to present their passport or other relevant ID. The drivers also have their vehicles thoroughly checked by the traffic police. The limitations to inside travel are mostly related to the border regions, such as Surkhandarya (bordering with Afghanistan, Turkmenistan and Tajikistan), Ferghana valley (bordering with Kyrgyzstan and Tajikistan), and Tashkent and Syrdarya regions (bordering with Kazakhstan).
2.6 Freedom of Assembly (Article 21)
24 Article 33 of the Constitution reads that “All citizens shall have the right to engage in public life by holding rallies, meetings, and demonstrations in accordance with the legislation of the Republic of Uzbekistan. The authorities shall have the right to suspend or ban such undertakings exclusively on the well-founded grounds of security.
In practice the procedure of holding assemblies is regulated by the 2003 Cabinet of Ministers’ Decree on “On the establishment of procedures for conducting mass events”. This bylaw has mostly affected the freedom of movement, assembly and expression of the Uzbek human rights defenders. Yet another decree in principle governs the actions of the state authorities in regulating the exercise of freedom of assembly. Decree No. 9306-XI of the Soviet Parliament from July 28th 1988 “On the Procedure for Holding Meetings, Processions and Demonstrations in the USSR”.
These regulations set specific requirements for the application procedure. The organizers of events, both indoors and outdoors, must provide detailed information at least 10 days prior to the event on the following issues: purpose, nature, place or route of the event, starting and finishing time, expected number of participants and full details of organizers. The local administration must make a decision and inform the applicants at least 5 days before the start of the event. It is entitled, when necessary, to propose to the applicants a different time and/orplace for the event.
In practice the local authorities abuse the rule of timely response by announcing their decision on the date or later than the date of the event stated in the application in order to disrupt the organization and logistics of the meeting. Authorities also abuse the discretion to propose another date, place and time for the event, often defeating the purposes of the organizers.
The law provides strict liability for the violations of the authorities’ decision to ban the event or the conditions imposed for holding it, such as: failure to follow in practice to the purpose, nature, place, starting and finishing times, or expected number of participants as stated in the application and was specifically approved. There is the possibility of criminal sanctions for organizers of the event if the event disrupts public order and safety, if any of the participants carry weapons or any specially prepared objects capable of being used to endanger life or health, if any material damage is caused to public or private property, in cases of failure to comply with the lawful requirements of authorities to terminate unauthorized events.
For instance, if the organizer of an assembly violates the procedures for organizing or holding assemblies, meetings, or demonstrations, he or she shall face an administrative penalty, as well as a fine of 50 to 75 minimum monthly wages, or detention for up to six months, or up to three years in prison (Art. 217 of the Criminal Code).
If the organizer of an assembly violates the regulations for holding religious assemblies, processions, or other cult ceremonies, he or she shall face an administrative penalty, as well as a fine of 50 to 75 minimum monthly wages, or detention for up to six months, or up to three years in prison (Art. 217 of the Criminal Code).
Anyone organizing a violent riot or a pogrom, committing arson, damaging or destroying property, resisting a representative of the authorities with violence or a threat to use a weapon or other object as a weapon, or actively participating in a riot, shall face punishment of 10 to 15 years in prison (Art. 244 of the Criminal Code).
Anyone convicted of hooliganism (intentional disregard for the rules of conduct in society) that is accompanied by battery, infliction of minor bodily injures, or destroying or causing significant damage to property shall face a fine of 50 to 100 minimum monthly wages, or correctional labour of up to three years (if committed by a group), or detention for up to six months. If anyone is convicted of committing acts of hooliganism during a public event, or if the hooliganism is accompanied by resisting a representative of the authorities, a citizen who is performing the function of maintaining public order, or others who are preventing violent behavior, shall be punishable by three to five years in prison (Art. 277 of the Criminal Code).
In practice many human rights NGOs have been subjected to these administrative and criminal sanctions in relation to organizing, participating and holding of events on various issues.
2.7 Freedom of association (Article 22)
25 In Uzbekistan the registration of civil society organizations is disproportionately more complicated than of any other civil entity such as business, banks or insurance companies. The legislative framework sets unjustifiably burdensome procedures for NGO registration, gives wide discretionary powers to the executive and is open to abuse by the authorities.
The following laws and bylaws regulate registration and activity of NGOs in Uzbekistan:
Law on Public Associations of February 02, 1991;
Law on Non-governmental organizations of April 14, 1999;
Decree # 132 of the Uzbek Cabinet of Ministers of March 12, 1993 “On Regulating of state registration of charters of NGOs” ;
Rules the Ministry of Justice of March 12 1993 “On considering applications for state registration of charters of NGO in Uzbekistan”.#
Ministry of Justice is responsible for registering national NGOs and political parties. Regional NGOs (those operating in regions), Karakalpakstan Autonomous Republic and Tashkent city NGOs # are registered accordingly by regional, Karakalpakstan Republic and Tashkent city departments of the Ministry of Justice.
According to Section # 2 of the above mentioned Ministry of Justice Rules, the NGO must submit the following documents for the registration procedure:
charter,
protocol of the meeting and the decision of members to form an NGOs
bank certificate about payment of the registration fee,
list of the founding members (showing their names, dates of birth, address, passport data, place of work),
list of person approved for executive positions of the NGO (a person can’t hold executive positions in two NGOs simultaneously)
protocols of meeting of founding members about forming regional offices of the NGO (if the NGO is founded to function on the national level)
income declaration of the founding members,
clearance letter from the owner of the place where the NGO plans to be located.
According to Section # 3 of the Rules, the Ministry of Justice is allowed 2 months to consider the application documents. It is entitled to send the application documents for comments and expert opinion to the corresponding state agency regulating affairs in that particular field of NGO operations. In case of human rights NGOs the documents are sent to the National Center for Human Rights of the Uzbek Government. Such state agencies can recommend the Ministry to approve or refuse the registration based on their expert opinion. Such expert opinions are considered classified information and cannot be challenged by the NGOs. Because of the time required to collect such expert opinions, the Ministry is allowed to extend the period of consideration for another month. Very often this lengthy period of 3months is violated by the Ministry of Justice.
Section # 3 of the Rules sets the following three types of decisions to be taken by the Ministry of Justice upon consideration of application documents:
register documents;
refuse to register documents;
or leave the application without consideration due to failure to meet the application requirements .
In practice the Ministry often resorts to the third type of decisions, leaving the NGO in the legal limbo. It often brings the argument that the statue does not comply with the requirements of Article 10 on Public Associations. Another common practice employed by the authorities is to contact the list of members and pressure them to withdraw their consent to forming the NGO. As a result the Ministry announces that the list of founding members is forged since some of them when contacted did not confirm that they have consented to becoming members and signing the founding documents of the NGO. The official reply indicates the reasons for holding the registration until the discovered irregularities are corrected by the organization. There is no limit to how many times the Ministry can resort to this type of decision regarding one NGO.
Some of the “mistakes” discovered by the Ministry in the application documents are on face value absurd. For example, in its official letter denying a registration of the human rights group “Mazlum” the Ministry of Justice wrote “…the group can’t put as its goal protection of human rights since Article 43 of the Constitution secures the State’s role in promotion and protection of the rights and freedoms of citizens…” Or in other occasions the Ministry’s letter said that the applicant could not choose combating torture as one of its objectives because the Uzbek legislation outlaws torture and hence, there is no torture in Uzbekistan.
PART III – CONCLUDING RECOMMENDATIONS:
GENERAL LEGAL FRAMEWORK FOR HUMAN RIGHTS PROTECTION
1. The State should put in place the legal mechanism for implementing the recommendations of the UN Human Rights Committee on the individual communications. The mechanism should address the issues of providing remedies for the victims of human rights violations in the framework of it material and procedural legislation according to the views of the Committee.
2. The State should take measures to guarantee the independence of the legal profession by prohibiting any interference on the issues of the internal regulation of the Bar by any state agency including the Ministry of Justice.
RIGHT TO LIFE (ARTICLE 6 )
1.The State should investigate the illegal use of force and firearms by the law-enforcement officials during the events of Andijan of May 2005 and hold the perpetrators of indiscriminate killings responsible .
2. The State should review its military manuals on the use of forces and firearms in the events of public demonstrations to bring them in line with the Article 6 and other provisions of the Covenant. The manual should be made open to public.
3. The State should establish the responsibility of the State for all instance of death in custody. The State should provide adequate compensation to the relatives of the victims. The state should release official statistics in all instances of death custody from the date of entry into force of the ICCPR. The report should indicate the results of investigation, including information on the remedies provided to the relatives of victims and paid compensation.
4. The Sate should release information to general public on all persons executed under the death penalty from 1995 to the time of abolition, including information on dates of execution and places of burials.
PROHIBITION OF TORTURE ( ARTICLE 7)
The State should announce an official policy of zero tolerance approach to torture and ill-treatment in the country. To that effect the State should take the following concrete measures:
Bring the definition of torture in its Article 235 of the Criminal Code into full compliance with the definition provided in article 1 of the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Amendments should be made to avoid the use of amnesty for the crime of torture.
End impunity for torture perpetrators by establishing an independent mechanism in accordance with the Istanbul Protocol with the special jurisdiction to investigate the cases of torture and ill-treatment across all areas not limiting to criminal justice, including any cases of death in closed institutions. The special mechanism should be entitled to receive and process all complaints of torture and ill-treatment by any agent of the State. The powers should include investigation of torture and ill-treatment crimes committed by all law-enforcement agencies including officers of the National Security Service, Ministry of the Interior, Department of Prisons, Prosecutors Office and other law-enforcement bodies. The functions should include conducting visits to all-closed institutions in par with the National Ombudsman to review complaints and launch investigation. This independent body should be directly accountable to the Parliament and make regular public reports on the status of fighting torture and ill-treatment in the country, including detailed statistics on number of allegations, number of investigations, prosecutions and compensations to the victims of torture.
Introduce in the legislation a specialized procedure for the examination of reports and complaints on torture with the following requirements:
a. the period of preliminary examination of reports and complaints of torture must be limited to a maximum of 10 days;
b. upon receiving/registering a report or a complaint of torture the specialized body in charge of examination must order an immediate forensic-medical examination to promptly record any physical injuries.
Provide in the legislation for the special rights of the victims of torture during preliminary examination, including, but not limited to the following:
c. to be informed of the process of a preliminary examination;
d. to raise questions and put forward requests to examine the additional facts and circumstances of alleged torture;
Amend its legislation governing rules of evidence to the following effect:
e. To diminish the possibility of law-enforcement agencies to extract confessions during criminal investigation, introduce amendments to its legislation making it a rule, that only confessions made before a judge during trial are considered as admissible evidence; confessions under all other circumstances not confirmed in court should be deemed as inadmissible.
f. To diminish the possibility of law-enforcement agencies harassing witness and extracting their statements, introduce amendments to its legislation whereby only those witness statements made in court should be considered and admitted as evidence in criminal trial. Any witness statement obtained prior to trial and not confirmed before a judge in trial should be deemed as inadmissible.
g. Admit results of medical examination conducted other than by official agency on medical expertise, upon confirming standard medical qualifications.
Strengthen the safeguards against torture and ill-treatment by taking the following measures:
h. End practice of police interrogations in closed offices by introducing specially designated interrogation rooms with window walls and easy public access, equipped with digital surveillance cameras to monitor the process of interrogations. Special procedures should be set in place to store the information from digital cameras. No persons other than law-enforcements officials should be allowed in the administrative sections of the police stations.
i. At all time during investigation the lawyer should have an unhindered access to the defendant under any form of detention without prerequisite permission from the investigator.
j. Anyone should have access to independent medical examination, results of which are treated equally as the state agencies on medical expertise
k. Anyone arrested or detained should be able to immediately exercise the right to inform his/her family about his whereabouts.
l. All persons admitted to police custody or pretrial detention should immediately upon admission be subject to a routine medical examination. Such service should be independent from police authority. The report should provide detailed description of a person’s health status, complains and information on origins of any injuries. Copy of such records should be kept with the medical service.
Provide in the legislation for the specific rights of the victims of torture to claim compensation from the state in civil courts independent from the criminal proceedings on the same case. Ensure that the process of payment of compensation from the state budget is adequate and timely.
Establish a mechanism of providing for the psychological and medical rehabilitation for torture victims.
Make available for public review and scrutiny all regulations, instructions or manuals pertaining to the rights and responsibilities of any type of detainees in closed institutors and conditions of such detention, including custody and pre-trial detention centers under the National Security Agency.
PROHIBITION OF SLAVERY AND CHILD LABOR (ARTICLE 8 AND ARTICLE 24)
The State should unconditionally prohibit the use of child labor by any state, municipal or private body in cotton or any other industry.
RIGHT TO LIBERTY AND SECURITY OF PERSON (ARTICLE 9)
The State should ensure that its legislation governing arrest and detention of individuals is in compliance with Article 9. Particularly the State should take the following measures:
Allow arrest or detention only in designated places with strict registration and control. To that effect the State should amend its Article 228 of Criminal Procedure Code and prohibit holding arrested person in office rooms of law-enforcement agencies
Bring the period of police custody to 48 hours from the time of arrest. Introduce strict measures of control over the procedures regulating arrest, specifically:
a. registration of time of arrest from the moment of factual restriction of liberty
b. reading the rights of arrested persons
c. providing immediate access to lawyer
d. conducting medical check-up before admitting a person to police custody
e. immediately informing the family of a person.
Introduce regulation whereby any arrested person should be held only in designated place of police custody or in the designated interrogation rooms. Holding of arrested persons in any other premises at the police stations should be prohibited.
The State should amend its Article 236 of the Criminal Procedure Code and prohibit holding a person without charge beyond 48 hours.
Amend the legislation on judicial sanctioning of arrest in Article 243 of the Criminal Procedure Code to comply with the requirements of Article 9, specifically:
f. Set the standards of reasonableness, proportionality, necessity and exceptional nature of detention as principles governing the judge’s decision on pre-trial detention;
g. Empower the judge to immediately release the person if the period of 48 hours of custody has been violated;
h. Specify the scope of issues to be considered by the judge, including the issue of reasonableness of criminal charges and legality of arrest;
i. Give the power to the judge to release immediately the person in the courtroom if grounds for detention are not established
j. Abandon the provision allowing the judge to extend custody for additional 48 hours. The total length of police custody should be limited to 48 hours without a possibility of extension.
k. Include the possibility for a judge to release a person under various guarantees including bail as alternative to detention
l. Amend the legislation making the trial of the criminal case by the same judge who previously decided on pre-trial detention as illegal.
m. Include the provision whereby the judge should inquiry from the defendant if any substantial violations of procedural rights have taken place during the period of custody, such as torture or ill-treatment. In case the judge establishes a reasonable suspicion that the person has been tortured or ill-treatment, the judge should be able to release the person and issue decree on conducting inquiry and investigation into the allegations
n. Designate special courts to hear the cases of pre-trial detention and to supervise the legality of arrest and detention.
RIGHT OF DETAINEES TO BE TREATED WITH HUMANITY AND DIGNITY
(ARTICLE 10)
To comply with the requirements under the Article 10, the State should take the following immediate measures:
Bring the legislation and practice of Uzbekistan in full compliance with the UN
Standard Minimum Rules for the Treatment of Prisoners and the Basic Principles for the Treatment of Prisoners to in order to strengthen the safeguards against torture in places of detention and incarceration.
Establish independent commission consisting of the National Ombudsman, civil society and international organizations to investigate the allegations of torture, including rape, of the religious prisoners in the Prison No.64/51 in Koson district of Kashkadarya region of Uzbekistan and Prison No. 64/33 in Karshi citiy. The scope of the commission should include conducting confidential interviews with inmates and their relatives, conducting of medical examinations, visiting random cells and solitary confinements. The findings of the report should be made public.
Take immediate legislative and institutional measures to allow regular public oversight of police stations, places of police custody under the Ministry of Interior, National Security Agency and of other detention facilities, including closed medical institutions. Facilitate the process of joining to the Optional Protocol under the UN Convention against Torture.
Amend its legislation on the regulation of conditions of detention to long-term and life-time prisoners by lowering the threshold for application to state pardon and for changing the incarceration regimes. Eliminate unreasonably harsh limitations for the maintenance of family contacts via correspondence and regular meetings with family members for such prisoners.
FREEDOM OF MOVEMENT (ARTICLE 12)
1. The State party should abolish the requirement of an exit visa for its nationals.
2. The government should present reasonable explanations on the need for remaining restrictions for travel and movement inside the country.
FREEDOM OF ASSEMBLY (ARTICLE 21)
The State should amend its regulations governing the exercise of the right to assembly to the
following effect:
a. Lift any undue limitations to the exercise of the freedom of assembly in the indoor events;
b. Amend the current list of required information for registration of event as putting excessive burden on the right to freedom of assembly and as contrary to Article 10;
c. Abolish the requirement of prior notification of 10 days as contrary to Article 10. The period of notification should be limited to maximum of 3 days;
d. The designated authorities must be required to make a prompt review and decision on the application and with the duty to inform the applicant not later than 24-hours before the event;
e. Preventive prohibition of assembly must be an exception. The law should clearly regulate the exceptional cases;
f. There must be recourse to judicial review and effective remedy, including compensation, in cases of unlawful denial of the right to assembly by the state authorities.
The State should amend its current criminal legislation pertaining to the violations of the procedure of holding and participating in public events as being excessively repressive, particularly the Article 217 and 277 of the Criminal Code.
FREEDOM OF ASSOCIATION (ARTICLE 22)
The State should amend its national legislation in the field of freedom of association in order to comply with the Article 22, by taking the following measures:
Review the list of required documents for registration with the aim of simplifying the procedure;
Abolish the practice of confidential expert opinions by relevant government agencies to inform the decision on registration;
Abolish the excessive period of 2 months allowed under current procedure for making a decision on registration;
Abolish the practice of indefinite postponement of registration permissible under current legislation;
The refusal of registration must contain specific reasons and must be in accordance with the national legislation and Article 22 of the Covenant;
The legislation must indicate the procedure of judicial review to guarantee effective remedy in cases of violations of the right to association.
The State should review the cases of numerous postponements of the registration of the following groups, which effectively violate their right to association:
Political party “Birlik”
Political party “Erk”
NGO “Najot”
NGO “Mothers against death penalty and torture”
NGO “Human Rights Society of Uzbekistan”
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