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Policy Brief
on the occasion of the next round of Human Rights Dialogue between the European Union and the Republic of Uzbekistan,
May 06, 2010 – Brussels, Belgium
“The post-sanctions Uzbekistan – EU relations: remaining problems and new benchmarks”
Email: xprtwg09@gmail.com
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April 16, 2010
Tashkent, Uzbekistan
Introduction
The Uzbek government is preparing for the next series of the Human Rights Dialogue with the European Union in May 2010.
The Expert Working Group takes this opportunity to analyze in this paper the current trends and development in the human rights situation of Uzbekistan, its relations with the European Union as well as draws the bloc’s attention to the major human rights problems and their solutions.
The first section of the paper provides a general overview and analyses of the current stage of Uzbekistan – European Union relations, focusing mainly on the post-sanctions period, implementation of the European Union Strategy for a New Partnership, and key challenges for the bilateral engagement. Most ideas presented in this section were coauthored by Mr. Sukhrobjon Ismoilov, the coordinator of the Expert Working Group, in a joint policy brief with Mr. Balazs Jarabik. The policy brief was published by the EU – Central Asian Monitoring Project (EUCAM) in July 2009.
The following sections of the paper focus on the current situation with key human rights issues in Uzbekistan and point out to the recommendations on how the European Union could get engaged in the solution of the indicated problems. The authors hope that most of those recommendations could be used as benchmarks in the EU – Uzbekistan relations to assess the human rights records of the Uzbek government.
Current stage of the Uzbekistan – EU relations: what the EU could focus on?
The EU and Central Asia: Strategy for a New Partnership” (July 2007) has put the EU before the dilemma as most of priority issues inevitably depend on political reforms in Uzbekistan. This may be the main focus of Brussels, but seems in contradiction with “realpolitik”. Even improvements on distribution and utilization of water resources, cross-border human and drug trafficking or environmental degradation and continuing salivation in the Aral Sea basin cannot be achieved without some degree of political opening, regional cooperation among the governments and subsequent reforms. However, there are no indications that the Uzbek authorities would allow opening up the closed borders.
It is obvious that Tashkent wants to focus on the “common threats and challenges” as one of the seven priority areas of cooperation indicated by the strategy. This is in line with “realpolitik”. Talking about Uzbekistan the common threats and challenges are associated with combating terrorism and Islamic fundamentalism. The EU could accept some activities of the Islamic Movement of Uzbekistan, al-Qaida networks and the Hizb ut-Tahrir, however unless the EU does not give any criteria on how these common challenges and threats are identified that gives chance to Tashkent to downplay other important phases of the strategy. It will want to focus on this one mainly.
But the EU has a strong dimension to offer to the Uzbek regime before transition: the goal of democracy, good governance, respect for human rights and rule of law, the declared priority in the EU strategy, should play this role. It is too obvious, what the EU should make crystal clear, that Uzbekistan – and any future transition – suffers greatly from political reluctance to embrace reform, unabatedly ruling autocratic political regime, gross human rights violations, corruption and a lack of social perspective in many areas. It is also too obvious that Tashkent considers this as too dangerous and is trying to put the goal of security and stability in the top of the agenda with the EU. The renewed US interest toward Afghanistan will only strengthen this effort in a short run.
Perhaps, the process of the development of the strategy, stemming from the sanctions against Uzbekistan imposed by the EU, was too much dragged to different ends by the various views among the EU member-states. This trend will continuously affect the implementation of the strategy along the lack of precise set of benchmarks which makes independent monitoring / evaluation difficult. Moreover, the whole process of development, discussion, incorporation into the national systems (in early 2008 the EU developed bilateral priority papers with each of the Central Asian states) and implementation of the strategy was an “insiders’ game” and elite-driven, neither the EU nor the Uzbek government have consulted members of the civil society organizations (CSOs) or intelligentsia in Uzbekistan. Lack of public information over the EU strategy and relations with Uzbekistan logically leads into a virtually non-existent public awareness of it in Uzbekistan. Until very recently, the strategy paper was not publicly available in Russian language and has yet to be translated into Uzbek. Information on the implementation of the strategy is kept behind closed doors meetings. Much of the stakeholders in Central Asia rely on detailed and reliable information on how the strategy is applied in practice – from the European Union. All these factors if continue will further limit the EU in a mere observer role in the power struggling over the incumbent president’s follower – one of the key development factors in current Uzbekistan.
While pointing to human rights, democracy, good governance and rule of law as one of the first priority issues, senior EU officials (e.g. the EUSR and his staff) are at the same time careful in avoiding “double standards” by singling out less criticism on human rights record in the region. This, however, from local viewpoint means that in terms of democracy and human rights even longer patience is needed as the strategy does neither pressure the Uzbek regime nor advises to ease the social tension by adopting new practices. Such an attitude merely allows Tashkent choosing among priorities what fits to their own policy path, Thus Tashkent can continue playing its own regular role in a new framework as well: each time a UN human rights treaty monitoring body adopts a set of specific recommendations, the authorities respond by adopting a National Action Plan on the implementation of the recommendations. No practice changes in the end.
The EU sanctions (imposed on 14 November 2005 under the Common Position 2005/792/CFSP by the Council of the EU) meant a lot for Uzbek people – as were the first major policy action from Europe up to date. Moreover, it was a principled stand toward the regime from the single biggest economic power in the world. The sanctions also brought limited, conditional but somewhat positive changes and progress in the field of human rights: release of imprisoned human rights activists, introduction of judicial and legislative reforms, and bringing the issue of human rights, democratization and rule of law at least to the table in the EU – Uzbekistan relations. Indeed, most of those changes are oriented to the short-term and do not stand for the systemic reforms and most of them are still far from the international standards. Indeed, those several political prisoners released can be imprisoned the other day. Still, such interactions and movements bring at least some hope for ordinary Uzbeks as this is something leaning on in terms of demands of more opening and liberalization from the Uzbek authorities.
Thus the EU sanctions imposed on Uzbekistan did the job well at the time. Improvement of the relations of the EU with Tashkent started in mid 2007 when the EU started rolling back the bulk of the sanctions against Uzbekistan. None should have the feeling that the EU is in a difficult position. Uzbekistan remains to be a hardcore partner to deal with for all international actors, China, the EU, Russia and the United States. Tashkent is a partner which cooperates only on its own terms with countries it chooses to its own approach – this is its multi-vector foreign policy. Importantly, even within this framework the EU could be the best partner for Uzbekistan in terms of its inclusiveness. The EU has long-term interests in Uzbekistan because it is directly affected by the developments in this region. Better than the other main international powers – Russia, China and the US – the EU can offer resources which can help on the development challenges Uzbekistan is facing and assist in transformation of Uzbekistan and the Central Asian region into a more secure place through development. Brussels should not forget though that interest may kill. It was the interest of some EU member-states putting the region into the political map of the EU, but it was again “the realpolitik” of some member states subsequently killing the block’s HR approach.
There is an obvious fear among the European policymakers that putting too much emphasis on human rights, democratization and rule of law could drive Uzbekistan into the orbit of Russia and China, e.g. distance it further from Europe. Moreover, some observers called the EU’s position too moralistic, thus counterproductive to the EU’s diversification of its energy imports. Brussels is well aware that the current elite has built its “multi-vector foreign policy” as a strategy to get as much as possible for very little in exchange. The EU should also be well aware about a possible system failure in Tashkent. The current trends are suggesting an even stronger pro-government obsession of Uzbekistan, while the growing impact of the global economic crisis (e.g. less resource from the cotton industry) as well as food shortages in the country could lead into even riots. The Uzbek law enforcement agencies seem loyal and strong enough to ensure a transition, however there is very little (if any) sign of transition at this moment. Brussels must be engaged at the maximum capacity to explain to the Uzbek authorities that it is in own interest to start with reforms and prepare for transformation and ease social tension.
The Uzbek public is comparing the EU mainly to Russia, the main “policy model” the local officials as well as population have been engaged with the most. The EU cannot and should not “compete” with Russia as in terms of political and economic weight it is more underrepresented in Uzbekistan. However, it can show a different policy model – the policy mainstreaming. It can show to the Uzbek public a different development path based on engagement with all possible stakeholders not only with the existing and absurdly corrupt political elite. The EU should pay a special attention to public awareness raising projects in order to raise the Europe’s image among the public and orient it towards European values and culture.
Through a local mirror the EU, compared to the US, has more chances to be perceived as an honest broker in Uzbekistan, thus it has the credibility to press for reforms, for the enhancement of the political space and greater political pluralism. If such engagement is applied consistently, with proper incentives and constant explanation of threats of the current policies/practices, the Uzbek authorities may open the door wider. However the EU should not look for or be satisfied with formal achievements.
Structured human rights dialogue which has already been launched, could be used as one of such values, if the intentions are to engage the embattled human rights community. The EU should put a greater effort to promote human rights and democratization and ensure active involvement of local civil society, human rights groups, parliaments, local authorities and other actors in the monitoring and implementation of its strategy. Engaging with various stakeholders, not only with the central authorities along with a subsequent communication of the strategy would give a larger impetus of the EU efforts and would bring closer what the EU intends to achieve – development.
To make this happen the EU should make sure that the strategy should not turn into a rigid paper, but should be maintained as a living and flexible document appropriating safeguards against splits inside the EU. As another tool for stakeholder engagement clear and precise benchmarks would make independent monitoring and evaluation possible. The implementation of the strategy should be not become an insiders’ game but should be brought in, all related information and papers should be made public and translated into Uzbek. The EU should give up closed door meetings and conferences.
What the EU mostly lacks in Uzbekistan are diverse natural partners. The regime could easily point around that they are the only one left to talk to. Indeed, today Uzbekistan practically doesn’t have a structured civil society to ensure public scrutiny of the government and providing a system of checks and balances on the implementation of the EU policies. There is only a hope in engaging those thousands of talented young Uzbek people, who have studied abroad on various Western scholarships and returned home. The EU should invest into development of strong(er) and independent civil society groups by engaging young professionals. Tashkent should be also not reluctant to the question how to channel the energy and knowledge of the next generation – into professional development or into riots (such as recently in Kyrgyzstan) given the discrimination against youth at every aspect of life in Uzbekistan. To top its regional strategy with such a development approach the EU needs to put more emphasize on the assistance aspects of the strategy for Central Asia and focus on quality of implementation.
To sum up, the EU should not let Tashkent take the driver’s seat, although it will have to listen to the Uzbek government in terms of understanding where to go. An advanced plan with concrete achievements would help to maintain the momentum the EU strategy was able to create in bilateral relations with Tashkent. It is also obvious that the EU sanctions as such, although did serve the purpose immediately after the Andijan events, did not serve as a leverage for bringing necessary policy changes further, and later on even started blocking any form of engagement. The EU could hardly pursue a realistic regional strategy with keeping the most populous country of that region in isolation, while engaging with similar regimes (e.g. Turkmenistan). However, once the EU is on the path of rapprochement that should at least be taken seriously and pursued in a European way. Bilateral discussions and pieces of dialogue have demonstrated the expectations of both parties differ substantially. Thus, there is a need for continuous attention to each other’s positions, formation of critical though constructive recommendations along the priority issues identified in the EU strategy.
Foreigners are an easy target in the Central Asia bazaars as they are neither aware of local habits nor what exactly they want. Thus, importantly, to establish itself as an influential regional player the EU should put the largest accent on the development dimension by clearly communicating it, showing a different policy models based on mainstreaming, e.g. engaging with as many stakeholders in Uzbekistan as possible, investing into the generation next and bringing young professionals into every possible aspects of policy life. Brussels should also learn a strong lesson from the US engagement in Central Asia, especially how the short term political goals (e.g. Afghanistan) managed to crash the long term development dimension.
Uzbekistan is not an easy and predictable partner, on the contrary with full sense of (self-) importance. Brussels should make clear that what it wants is a politically stable, socially developed and economically market oriented Uzbekistan. Only through intensive cooperation with various layers of society the EU will be able to support and influence the difficult process of progressing reforms, what includes critical dialogue on problematic issues. The Uzbek government itself could demonstrate interest in promoting rule of law and democratic reforms only in combination of stability and prosperity of the country (and to the advantage of the ruling elite as well). From this aspect, the issues of human rights, democracy, good governance and rule of law should stand at equal significance and fully interconnected as they are in reality with security or energy in the EU policies. Any other position will make the EU not soft, but weak in the eyes of the Uzbek society.
The interaction of the Government of Uzbekistan with the United Nations human rights mechanisms
On March 11-12, 2010 the United Nations Human Rights Committee reviewed the third periodic report of the Uzbek government under the International Covenant on civil and political rights (ICCPR). On March 25 the Committee has adopted its concluding observations and recommendations addressed to the Uzbek government.
Prior to standing before the Committee the Uzbek government appeared before the UN Human Rights Council under the Universal Periodic Review (UPR) procedure in December 2008. We think from the point of relevance and actuality the concluding observations and recommendations made by the Committee in March 2010 are more important, they are fresh and could be more effectively targeted as benchmarks by the European Union. They repeat most of the important recommendations of the review under the UPR.
Moreover, the concluding observations and recommendations of the Committee from March begin with stating that the Uzbek government failed to implement most of the 19 specific recommendations made by the Committee back then in 2005 as a result of consideration of the 2nd periodic report of the State-party. Thus, in recommendation # 4 from March 2010 the Committee calls on the Uzbek government to fully implement the recommendations of the review in 2005.
The concluding observations and recommendations of the Committee in March 2010 touch upon a number of important human rights issues for Uzbekistan. A detailed analysis of the most important recommendations of the Committee was presented in the commentary of the Expert Working Group. 18 key recommendations out of 27 are analyzed in details in this commentary with a view of their possible implication for Uzbekistan in the upcoming reporting period until 2014.
Some of those selected recommendations concern the repeated need to conduct independent investigation on “Andijan events” of May 2005 and revising the rules of using physical force and firearms by the state agents; improving environment and conditions for the local civil society activists and providing more freedom to them, including freedom of operation and activities, and investigation on cases of persecution and attacks on human rights activists; abolition of exit visa; ensuring freedom of activity and independence for the judiciary and bar institutions; combating torture, ending impunity for perpetrators and ensuring torture victims receive proper compensation and rehabilitation; bringing the existing procedures of pre-trial detention, i.e. “habeas corpus” in line with international standards; and ending forced child labor.
We urge the European Union to raise with the Uzbek authorities the issue of fullest implementation of those most important recommendations of the United Nations Human Rights Committee. We urge the European Union to accept those key recommendations as one of the benchmarks in its relations with the Uzbek authorities. We think the issue of implementation of those recommendations should be an important part of the agenda in the future Human Rights Dialogues between the European Union and Uzbekistan. The European Union should also urge the Uzbek authorities to issue invitation to the United Nations special procedures on human rights awaiting visits to the country.
Access to justice and fair trial, including introduction of “habeas corpus” institute
On January 1, 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 art. 9 of the ICCPR as it is unpredictable, unjust, and disproportionate to the stated goals, ultimately leading to the practice of indiscriminate restrictions to individuals’ right to liberty.
According to art. 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 art. 9 of the ICCPR. 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 art. 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.
International standards accepted by the Uzbek government set that the judicial review of the lawfulness of detention 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 ICCPR. 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. In this sense 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. Those requirements under art. 9 of the ICCPR are not upheld in law and practice in Uzbekistan.
Art. 243 of the CPC on judicial sanctioning of detention contains the following violations:
contrary to art. 9 of the ICCPR, and in combination with art. 14 of the ICCPR, 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 pre-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 art. 9 of the ICCPR and other relevant 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.
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 abuses 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 pre-trial detention 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 European Union should urge the Uzbek government to ensure that its legislation governing arrest and detention of individuals is in compliance with art. 9 of the ICCPR. Particularly the Uzbek authorities should take the following measures:
The State should amend its art. 236 of the CPC and prohibit holding a person without charge beyond 48 hours and bring the period of police custody to 48 hours from the time of arrest;
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.
Amend the legislation on judicial sanctioning of arrest in art. 243 of the CPC to comply with the requirements of art. 9 of the ICCPR, specifically:
a. Set the standards of reasonableness, proportionality, necessity and exceptional nature of detention as principles governing the judge’s decision on pre-trial detention;
b. Empower the judge to immediately release the person if the period of 48 hours of custody has been violated;
c. Specify the scope of issues to be considered by the judge, including the issue of reasonableness of criminal charges and legality of arrest;
d. Give the power to the judge to release immediately the person in the courtroom if grounds for detention are not established
e. 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.
f. Include the possibility for a judge to release a person under various guarantees including bail as alternative to detention
g. Amend the legislation making the trial of the criminal case by the same judge who previously decided on pre-trial detention as illegal.
h. Include the provision whereby the judge should inquire from the defendant if any substantial violations of procedural rights has 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-treated, the judge should be able to release the person and issue decree on conducting inquiry and investigation into the allegations
i. Designate special courts to hear the cases of pre-trial detention and to supervise the legality of arrest and detention.
Prison conditions
Independent non-governmental observers, including international NGOs, do not have a full and prompt access to all detention places in Uzbekistan – that is police lock-ups, pre-trial detention custodies, National Security Service detention facilities, prisons, detention units of medical and psychiatric institutions and clinics – and as such have no means to monitor personal treatment and condition of detention. The procedure for obtaining such authorizations is not clear at all.
The government’s reports state that the Central Department of the Ministry of Internal Affairs on Execution of Criminal Punishment allows unhindered access to penitentiary institutions for the members of diplomatic corps, for international non-governmental organizations, for local non-profit organizations and for the media (including foreign ones). According to the official statements, instructions about the arranging visits to penal institutions are now available and on record at the Ministry of Justice. Uzbekistan is setting up a system that will open to civil institutions’ representatives an access to penitentiary facilities. According to the State report, the Central Department of the Ministry of Internal Affairs on Execution of Criminal Punishment has produced a model agreement to govern access by non-profit organizations to detention places.
This statement must be disallowed. The model agreement has never been made public or otherwise disseminated among the stakeholders. No system allows the representatives of the civil society an access to penitentiary facilities. The penitentiary system in Uzbekistan remains a closed system. Official review bodies (regulators, public account bodies, governmental and quasi-governmental supervisory bodies), any other bodies which are involved in the penitentiary environment (probation services, social welfare, child protection, schools and etc.) as well as non-governmental organization and academics, all rely on detailed and reliable statistical information on how the penitentiary system operates in practice. Such information in Uzbekistan is, almost invariably, for “internal use only” and is not made available to the general public or to outside bodies (this is one of the obstacles in our research). Such statistics are made available to outsiders on an entirely discretionary basis.
According to the Law “On Ombudsman”, the Ombudsman’s office visits all detention places, including prisons, police lock-ups, pre-trial detention custodies, National Security Service detention facilities, detention units of medical and psychiatric institutions and clinics, in order to monitor treatment and conditions of detention. The Ombudsman is empowered with the authority to inspect, as he wants to, as necessary and without notice, any place of detention. The Ombudsman’s institution in Uzbekistan is fully dependent on the executive branch and its visits to detention places may not shed any light on the situation. Reports of the Ombudsman’s office upon visiting detention places, including conclusions and recommendations, are not made public. It is one of the reasons why it is so complicated to follow up on the recommendations of the Ombudsman’s office and its implementation by the Central Department of the Ministry of Internal Affairs on Execution of Criminal Punishment.
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 Department 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 United Nations Human Rights Committee in its General Comment 21 on art. 10 of the ICCPR, 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, color, 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.
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 of the ICCPR. 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.
The European Union is urged to call on the Uzbek authorities to 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. The need to establish independent investigation mechanism consisting of the National Ombudsman, civil society and international organizations to investigate the allegations of torture, including rape, of the religious prisoners in the Uzbek prisons and pre-trial detention centers should also be reminded. The scope of activities of the proposed independent investigation body should include conducting confidential interviews with inmates and their relatives, conducting of medical examinations, visiting random cells and solitary confinements. The findings of the investigations should be made public. The European Union should also call on the Uzbek government to 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 and join the Optional Protocol under the UN Convention against Torture. The European Union should urge the Uzbek government to take further the reform with abolition of death penalty in Uzbekistan by amending 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 and eliminating unreasonably harsh limitations for the maintenance of family contacts via correspondence and regular meetings with family members for such prisoners.
The European Union should also urge Uzbek government to transfer the penitentiary system from the Ministry of Internal Affairs to the Ministry of Justice. The Expert Working Group has recently published a policy paper on the perspectives of transfer of the national penitentiary system from the MIA to the MoJ.
The role of the civil society
The Uzbek government has always been suspicious of the NGOs and other civil society actors (e.g. journalists, mass media, political parties, intelligentsia, etc.) and evaluated them through the prism of loyalty or disloyalty to the ruling political regime. It is only in countries like Uzbekistan NGOs including human rights groups conditionally fall under two main categories: the so called pro-governmental NGOs or GONGOs which stick to the government proclaimed mainstream ideology and independent NGOs and human rights groups which point out to the problems and shortcoming in the government’s policies.
Coming from such categorization the pro-governmental NGOs enjoy government funding, can easily get their state registration and legalization and are given a managed part in the government orchestrated promotion and protection of human rights. Such GONGOs are part of the government official propaganda machinery with the main task of picturing the Uzbek government as a government respecting and protecting human rights and freedoms. The pro-governmental NGOs in Uzbekistan have controlled but unhindered access to the national mass media.
Very small number of so called independent NGOs and human rights groups completely fall out of this process and face regular government harassment and persecution in their activities. In Uzbekistan the issues of NGOs and human rights groups are dealt by special departments of the secret service and police which are also in charge of combating terrorism threats. Uzbekistan has retained special departments of the secret service and police which during the Soviet times used to deal with the dissidents.
Independent NGOs and human rights groups have no access to the national mass media, their websites and emails are constantly blocked by the secret services. Most of them are not officially registered by the Uzbek government despite their numerous applications to the Uzbek Ministry of Justice requesting a state registration. Those of them which have luckily received state registration, in most cases under the intense pressure of international community (e.g. “Ezgulik” Human Rights Society of Uzbekistan, Independent Human Rights Society of Uzbekistan), have to go through everyday struggle to keep their official status and still be able to conduct their day-to-day activities. The government retains a complicated and time-consuming reporting for the registered NGOs. A registered NGO has to report to the Ministry of Justice, tax authorities and national statistics department every three months. The government prevents independent NGOs from free assembly. A NGO which is planning to conduct any public event or gathering has to report about this to the local branch of the Ministry of Justice enclosing a detailed program of the planned event with the participants’ list. Under the Cabinet of Ministers of Decree # 56 from 2004 the Uzbek government prevents independent NGOs from receiving their grant funds from the official bank accounts. In order to receive the grant funds from their official bank account NGOs are required to submit their project proposal which is already approved by the donor to a special government commission under the bank for further “approval”. Almost in all cases the NGOs are refused to receive their grant funds from the bank.
Beginning 2005 the Uzbek government has embarked on building an obedient and easily manageable NGO sector. This process is continuing to date. At that time the bulk of the Uzbek NGOs who enjoyed more or less freedom in their activities till then were either closed or forced to self-closure. The remaining NGOs were forced to join a newly created GONGO – the National Association of Non-Profit Non-Governmental Organizations of Uzbekistan (so called NANNOUz). According to the third periodic report of the Uzbek government to the Human Rights Committee in 2010, the NANNOUz currently has 330 members, embracing all aspects of the life in such areas as social support and on legal, women’s, youth, environmental and other matters. In 2008 the government created under the Parliament a special Foundation for supporting NGOs and other civil society institutions. This Foundation is entitled to receive 4 % of the annual national budget of Uzbekistan. A special commission made up of the MPs, representatives of different government ministries and agencies will manage this Foundation, consider the grant applications submitted by the Uzbek NGOs and make decisions on them.
Uzbekistan faces new waves of terrorist attacks from time to time. Since the latest terrorist attacks in summer of 2009 under a new security environment the Uzbek government resorted to even more curtailing of the professional rights of the human rights activists. In considering the types of measures taken by the Uzbek government in the name of security that have impacted the work of human rights defenders it is possible to identify the following broad trends.
Counter-terror laws: The Uzbek government has renewed and increased use of pre-existing security or anti-terror legislation in ways that have been harmful to human rights defenders;
Equating human rights defenders with terrorists: The Uzbek government have taken advantage of heightened public fears to undermine the credibility and reputation of human rights defenders by accusing them of giving aid and comfort to terrorists, or of being insufficiently patriotic at a time when the state is facing peril;
Expedient manipulation of security language: In addition, the Uzbek government has sought political advantage from heightened security tensions by seeking to characterize a broad range of dissent or political opposition, including non-violent opposition as “terrorist” or potentially so, thereby justifying the limitation of basic rights and freedoms that are essential to the work of human rights defenders. Uzbekistan as a country that had pre-existing states of emergency became more comfortable in sustaining and prolonging them. Both local and international critics of such measures that systematically nullify rights protection found their positions weakened.
The Uzbek government continues its practice of putting NGO and human rights activists into jail for their criticism. In December 2008 Uzbekistan released two imprisoned human rights activists Dilmurod Mukhiddinov and Mamarajab Nazarov, and provided an authorization to Mutabar Tojiboeva, another human rights activist on conditional release, to leave the territory. This was hailed by the EU as one of the signs of progress in the human rights. But in the same month the Uzbek authorities have imprisoned two more activists – Agzam Turgunov and Solijon Abdurakhmonov – to more than 10 years under trumped up criminal charges. In 2009 the Uzbek government imprisoned Dilmurod Saidov, an outspoken independent journalist and Farkhod Mukhtarov, a human rights activist. In the beginning of 2010 the government imprisoned Ganikhon Mamatkhonov, a human rights defender from Ferghana region. To date at least 15 human rights activists and independent journalists remain in prison for their criticism of the government policies.
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 the 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. The practical implementation of the above mentioned government decrees on the bar reform in Uzbekistan has kept negatively affecting the capacity of the lawyers to provide timely, independent and free legal counsel to their clients. During the reporting period many prominent and outspoken Uzbek defense lawyers have voluntarily decided to cease practicing law as they didn’t want to continue working under the increased government pressure and 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. 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.
Every detained suspect or accused is entitled to contact a defence lawyer or relatives immediately from the moment of the actual apprehension. We remain concerned about the absence of information on the application of these guarantees in practice. The recent reform of the regulations governing defence lawyers, has increased the role of the Ministry of Justice in matters related to the legal profession, including disciplining of lawyers. We are also concerned about the practice according to which lawyers’ licences are only valid for three years and are renewed thereafter by a qualification commission composed of representatives of the Ministry of Justice and the Lawyers’ Chamber. During the reporting period the government continued to pursue a strategy curtailing any independence among the legal profession or human rights defenders. It abolished the provision of the law, which allowed public defenders (human rights activists) 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 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.
The authors of the report remain concerned about the number of representatives of independent NGOs, journalists, and human rights defenders assaulted, harassed or intimidated, because of the exercise of their profession. We also note with concern that some representatives of international organisations, including NGOs, are denied entry to Uzbekistan. Furthermore, during the reporting period the Uzbek authorities have failed to carry out sufficient investigations on all alleged assaults, threats, or acts of harassment of journalists and human rights defenders. The existing provisions in articles 139 (Insult) and 140 (Defemation) of the Criminal Code on defamation and insult may also be used to punish individuals who criticise the existing regime.
The European Union should urge the Uzbek government to implement the following recommendations:
The Uzbek government should allow representatives of international organisations and NGOs to enter and work in the country and should guarantee journalists and human rights defenders in Uzbekistan the right to freedom of expression in the conduct of their activities;
Take immediate action to provide effective protection to journalists and human rights defenders who were subjected to assaults, threats, and intimidations due to their professional activities;
Ensure the prompt, effective, and impartial investigation of threats, harassment, and assaults on journalists and human rights defenders and, when appropriate, prosecute and institute proceedings against the perpetrators of such acts;
Make public detailed information on all cases of criminal prosecutions relating to threats, intimidation, and assaults of journalists and human rights defenders in the State party in its next periodic report; and
Review the provisions on defamation and insult (articles 139 and 140 of the Criminal Code) and ensure that they are not used to harass, intimidate, or convict journalists or human rights defenders.
Immediately and unconditionally release all wrongfully imprisoned human rights
defenders, journalists, members of the political opposition, and other activists held
on politically motivated charges;
End the crackdown on civil society and allow domestic and international human
rights groups to operate without government interference, including by re-registering
those that have been liquidated or otherwise forced to stop working in Uzbekistan,
and issuing visas and accreditation for staff of international nongovernmental
organisations;
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;
Ensure that all apprehended persons have the right to contact relatives and a lawyer;
Review and amend its laws and practice, so as to ensure the independence of lawyers, including through a revision of the system regarding the granting of licences;
Review the list of required documents for the NGO registration with the aim of simplifying the procedure;
Abolish the practice of confidential expert opinions by relevant government agencies to inform the decision on the NGO registration;
Abolish the excessive period of 2 months allowed under current procedure for making a decision on the NGO registration;
Abolish the practice of indefinite postponement of the NGO registration permissible under current legislation;
The refusal of registration must contain specific reasons and must be in accordance with the national legislation and art. 22 of the ICCPR;
The legislation must indicate the procedure of judicial review to guarantee effective remedy in cases of violations of the right to association.
Forced child labor
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 8-14 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. In 2009 the official rate of payment for 1 kilo of cotton was 85 Uzbek sums (approximately $ 0.04 US cents). Children sometimes partly receive payment for their labor.
The working and living conditions of children involved in cotton picking and the way this process is organized makes exploitation of the child labour in cotton picking equal to inhuman treatment.
Each child depending on the season has been obliged to pick 20 to 40 kilos of cotton every day if it is the first harvest. For the second harvest, the daily obligation of cotton picking was 15-20 kilos. This is a very hard objective for a child to accomplish daily.
Many children become sick due to the harsh conditions of work, the pesticides, etc. In addition, this situation is worsened due to the fact that the government is trying to distance itself from the problem under the increasing public criticism over the forced child labour issue and do not provide access to the medical services in the cotton fields. There is no medical assistant attached to every camp where children are located. There is no system of regular medical check up of the state of health of the children in the cotton fields. If a child gets ill in the cotton field he is not allowed to inform his family and go home until his health dramatically deteriorates.
Moreover, accidents are not rare because the norms of technical safety of organizing the work process for the children in the cotton fields are not fulfilled. No protection and prevention mechanisms are worked out to safeguard the children from falling into different accidents and technical emergency situations. Teachers are forced to stay with the children in the cotton fields but they cannot guarantee safety of the children from different technical accidents.
During the harvesting period, the children have rest in the class rooms of the schools in the villages where they are located. Every child has to take his own bed with him otherwise they sleep on the cold floor. There are no heating premises in the places the children sleep. 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 evenings.
Children use cold water to wash themselves and their clothes. In many places children do no have access to clean drinking water and use water from open channels. Sometimes children have to go to the houses of the local people to take shower. Having access to a shower with hot water in the houses of the local people is 500 Uzbek sums (approximately $ 0.5 US).
The food children are given in the cotton fields is very poor even though they are given food three times a day. Children are cut off from any entertainment means in the cotton fields. They don’t have access to TV-sets, radio or other devices. They do not have access to books. However, children are not prohibited to bring those items with themselves.
The Uzbek government usually argues that the children have volunteered for cotton picking because the cotton is a national wealth. The only way of exemption from being forcedly involved in the cotton picking is obtaining a written allowance of the district or city hospital’s or doctors’ council. People who do not want their children to go forcedly to the cotton fields often buy such written allowance of the doctors through bribing them.
Because of the conditions of the work in picking up the cotton by involving children and the way the work is organized by the Uzbek authorities we consider that the State of Uzbekistan has full responsibility regarding this practice which, according to the circumstances, could be qualified as cruel, inhuman or degrading treatment.
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 to be harmful to the 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. Uzbekistan is responsible because its public administrations are involved in the cotton production.
Many regional administrations routinely use children to help meet central government-imposed quotas for annual cotton production. The attitude of the authorities which know about the use of children and do not act to protect them or which sometimes organise the cotton harvest and employ children should be considered a situation happening “with the consent or acquiescence of a public official or other person acting in an official capacity”. Independent researches and inquiries by medical personnel shows that after the cotton harvest season, half of them are sick.
Human rights activists have reported that in May 2009 the Uzbek authorities stated forcedly engaging schoolchildren all over the country in crop and weeding of cotton.
According to our information in some regions schoolchildren are engaged in forced labor under the bilateral written agreements between the farmers who grow cotton under the state order and school administrations in which farmers bear responsibility to provide some assistance in reconstruction of school buildings in return to the assistance in cultivating cotton by the schoolchildren (e.g. purchasing paints or providing masters necessary for reconstruction of school buildings). Such situation was documented by us at schools in Andijan and Namangan regions. In other areas such as Kashkadarya, Surkhandarya, Djizakh and Khorezm regions schoolchildren are forcedly engaged in spring cultivation of cotton based on unwritten orders of the school administration.
Where it takes place under the written agreement between the farmer and school administration the time when and how long schoolchildren have to be engaged in cultivation activities is formally fixed, that is after school hours and for 3-4 hours a day. Sometimes the farmer also bears the responsibility to take care of the transportation of schoolchildren to cotton fields and providing them with lunch. However, in practice the farmers rarely implement those clauses of the agreement. Out monitoring shows that in majority of regions schoolchildren are engaged in forced labor during school hours. They also take care of their transportation to the cotton fields themselves (either on foot or on transport for their own money). They don’t receive food and have to carry food from home. This indicates that despite written formal agreement between the farmer and schoolchildren the whole process is controlled by the government and local executive branches of the government.
Representatives of the local government bodies interpret engagement of children in spring agricultural activities as their voluntary decision to help their parents after school hours. The officials keep on denying that educational process at schools is interrupted.
The European Union should urge the Uzbek authorities to unconditionally prohibit and stop the use of child labor by any state, municipal or private body in cotton or any other industry.
Freedom of expression and information
The Uzbek government has continued repression of the right to freedom of expression through threatening and intimidating independent journalists and reporters during the reporting period.
In December 2009 several independent journalists have been illegally summoned to the Tashkent prosecutor’s office for a so called “informal conversation” about their journalistic activities. The official at the Tashkent city prosecutor’s office questioned journalists about their journalistic activities and publications criticizing the Uzbek government. The official told the journalists that a dossier on each journalist has been provided by the National Security Agency (NSS) and the Ministry of Internal Affairs.
During the reporting period the authorities continued holding a number of independent journalists in prison under politically motivated charges: Jamshid Karimov (held in a psychiatric clinic), Solijon Abdurakhmanov and Dilmurod Saidov. In 2010 Umida Akhmedova, Uzbek photographer and journalist, has been brought to the court under a trumped up criminal case charging her of defamation against the Uzbek nation by her independent photo-reports. In 2010 the government has also brought to the court Hayrulla Hamidov, another independent Uzbek journalist, charging him of an allegedly religious extremism and anti-constitutional activities.
The government has kept blocking foreign correspondents and Uzbek citizens working for foreign media from operating without accreditation. At present there are only very few accredited foreign correspondents in Uzbekistan, and no foreign journalists working for Western media outlets. The authors would like the EU to raise the need of making necessary amendments into the existing procedures of accreditation of the correspondents of the foreign and international mass media and journalists in Uzbekistan. In our view, existing international standards and provisions of art. 19 of the Universal Declaration of Human Rights should have priority over national norms in setting procedures of accreditation.
The existing practice of accreditation of international / foreign mass media and journalists by the Ministry of Foreign Affairs (MFA) of Uzbekistan sets a series of serious unnecessary restrictions. Thus, a decision on accreditation of the MFA is made dependable on the conclusion of the Press-Service of the Ministry which may recommend denying accreditation to international / foreign mass media and journalists in Uzbekistan. Such practice is contradictory to the provisions of art. 19 of the UDHR as the opinion of the Press-Service of the MFA of Uzbekistan can’t enjoy supremacy over international norms to which Uzbekistan has joined.
We are also concerned by unnecessarily long period of consideration of the application on accreditation. The MFA considers an application on accreditation within two months. Moreover, the MFA issues an official warning to every accredited international / foreign mass media and journalists accredited in Uzbekistan that they should refrain from “interference into internal affairs, and violation of honor, dignity and privacy of citizens of Uzbekistan”. It is not clear who and how defines whether there was interference into internal affairs of Uzbekistan or whether honor, dignity and privacy of the Uzbek citizens was violated. Such restriction should be lifted and instead of it the accredited mass media and journalist must undertake obligation to follow the mission and statutes of mass media, international norms and human rights.
Such international news agencies RFE/RL, Reuters, Associated Press, Deutsche Welle, BBC and the Institute for War and Peace Reporting (IWPR) have been repeatedly refused re-accreditation. Independent websites publishing critical materials on the government policies have continued being regularly blocked within Uzbekistan.
The European Union should call on the Uzbek authorities to cease harassment of journalists, decriminalize libel and slander, and allow domestic and international media outlets, including those that have been forced to stop operating in Uzbekistan, to register and grant accreditation to international journalists.
Freedom of thought, conscience and religion (fight against extremism)
In our view, violation of the right to freedom of religion or belief in Uzbekistan represents one of the most serious escalations of human rights abuses and threatens Uzbekistan’s future as a stable nation governed by the rule of law and democratic principles. The Uzbek authorities dismiss the crackdown against independent Islamic groups as necessary to stabilize the country during its transition toward its stated goals of a democratic state and a free-market economy. The government of Uzbekistan justifies its strong-hand tactics as necessary to fend off militant Islamists and religious extremists. It is not clear whether religious fundamentalism and in particular militant Islamism is a real threat to Uzbekistan or merely a political game or a scapegoat.
Regardless of the legitimacy of the threat of religious fundamentalism the issue of the right to freedom of religion or belief remains essential to the future of Uzbekistan as a stable, constitutional state. Dealing with this issue effectively in line with the national legislation and commonly recognized international standards could help avoid both an increase in resentment on the part of the religious or belief communities, in particular the Muslim population, and allegations on so called “intervention into Uzbekistan’s internal affairs by foreign states and organizations”.
The policy of Uzbek government towards religion that it inherited from the Soviet Union is a policy based on an uncompromising premise of “that which is not controlled is forbidden”. The government tries to supervise religious worship and belief, by overseeing the Islamic hierarchy, the content of imams’ sermons, and the substance of their religious materials. In the course of the past years, the Uzbek government has continued to persecute and harass those who practice Islam outside of the government-controlled system. Uzbek law provides for criminal and administrative penalties against those involved in unregistered religious organizations, private religious education, and the possession and distribution of literature recognized as “extremist”. Counter–terror laws are also actively applied in persecution of Muslims who fall beyond the government controlled Islam.
Uzbek authorities have invoked these penalties to punish Muslims who pray in unregistered mosques, study Islam with private teachers, or who are followers of imams who fall out of favor with the government. Using the aforementioned law enforcement tools, government attempted to portray independent Muslims as “extremists” and the “nation’s enemies”. After September 11, such campaign against independent Muslims is justified as a part of the global campaign against terrorism. The government has persecuted and brought to the court independent Muslims who can be divided into several broad categories which are labeled as fundamentalist and extremist religious groups: first, unaffiliated independent Muslims who were accused of “Wahhabism”, a term used to denote “Islamic fundamentalism”; individuals charged with membership in Hizb ut-Tahrir (Party of Liberation), a transnational organization that advocates reestablishment of the Caliphate (an Islamic state) in traditionally Muslim lands; unaffiliated group of young Muslim entrepreneurs “Akromiylar”; adherents of Said Nursi called “Nurchilar”. Regardless of a person’s affiliation with the above mentioned religious groups, authorities often violate their civil and political rights. Many of the criminal cases against independent Muslims are forged, torture and ill-treatment are widespread, there are usually no fair trials or independent judges, and court trials and decisions severely violate the Criminal Code and Procedure of Uzbekistan.
Religious prisoners and their family members in Uzbekistan face immense discrimination in all walks of life. The government policy on combating religious fundamentalism and extremism is built on the principle that if there is one religious extremist in the family, all remaining members of the family are then extremists too. There are many cases when the Uzbek authorities have arrested and imprisoned for long years several members from the same family. At the same time being a traditional society ruled by traditions and public morale the Uzbek society tends to isolate the family members of a religious prisoner and avoid contact with them. A religious prisoner among the members of the family makes it impossible to apply for a job in the government body. The family members of religious prisoners are kept under constant surveillance of the local police and mahalla committees.
The government of Uzbekistan practices the policy of restraint against the freedom of religion and belief. The government has learnt that there are strong need and inclination towards religion or belief among the Uzbek society. The Uzbek authorities have reasonably concluded that as it is impossible to get rid of such need it should be used to maintain and strengthen the political power of the ruling elite. As a result today the authoritative government and traditional religious establishment, including official Islamic establishment, have reached a mutually beneficial deal. The authorities support the official religious establishment in their activities while suppressing and persecuting unaffiliated religious groups or communities, the official religious establishment work for proving the legitimacy of the ruling political elite. For instance, during their Friday prayer sermons all imams of the mosques in Uzbekistan are obliged to express gratitude to the Uzbek authorities for “creating such good conditions for practicing religion and belief”. The same proves true for other religions and beliefs in Uzbekistan.
The Uzbek authorities have always tried to control the growth and level of religiosity in the society. This is one of the priority issues among the government policies in Uzbekistan. Such control and supervision is composed of multi-level measures. One of the vectors of such control lies at the level of mosques. The Uzbek authorities have set rigid informal quotas on the number of registered officially allowed mosques. Only a few new mosques are registered by the government each year while many others are forcedly closed. The government controls the content of the religious sermons and religious literature. The religious or belief communities clearly understand the essence of such government policy and accept that as a humiliation though they are reluctant to express publicly their dissent. The task of maintaining the secular character of the state has been transformed in Uzbekistan into forced secularization of the public consciousness. Despite its contradiction to the existing national laws and international standards the Uzbek government keeps on going accomplishing this task. Thus, in the public consciousness of the majority in Uzbekistan the state policy and Islamic values are opposing to each other.
The government has understood that there is a great demand for religious education, especially education on Islam, among the society. Thus, in 1999 the Uzbek authorities established the Tashkent State Islamic University which was meant to prepare religious intellectuals and formulate contemporary religious teachings conforming to the government policy on freedom of religion. Surprisingly, this university was established under the Decree of the Cabinet of Ministers and submits to this central governmental body which contradicts the principle of a secular state laid out in the Uzbek Constitution and other national laws. Apart from the Islamic University, there are also several official religious educational centers throughout Uzbekistan which prepare religious cadres. However, those official religious educational centers are not in the position to cover the demand of the whole society to religious education.
It is difficult to assess the presence, level of activism and strength of religious fundamentalist and extremist groups in Uzbekistan. With the government’s repressive regime, poor living and economic conditions, and reports of common and unusual torture make a fertile breeding ground for Islamist fundamentalist and extremist groups in Uzbekistan (the Hizb-ut-Tahrir, Wahhabism and the Islamic Movement of Uzbekistan (IMU). Unlawful or inhumane actions committed by the Uzbek government are viewed by those groups as an attack on the Muslim community.
They view the current status of Islam in Uzbekistan to be shrinking due to the government’s repression despite the fact that mosques have been erected and refurbished. Even though many operations and campaigns against the group have been conducted, it is resilient in that it has proven the ability to recruit members rather quickly. This is problematic for Uzbekistan primarily because there is only so much they can do to stop a group that considers itself a political party, not a militant group.
In general the Uzbek authorities control the situation by applying punitive measures. But the consequences of this are conflicting. On one hand, the influence of and threats from religious fundamentalist and extremist groups are reduced. On the other hand, the imprisonment, jailing, and crackdown on religious groups falling of the government set boundaries will possibly fuel those groups and push them to become more radical. One of the main places of radicalization of peaceful Muslim groups today in Uzbekistan are Uzbek prisons. Whatever the consequences, it is quite clear that Islamist fundamentalist and extremist groups are not leaving Uzbekistan and will continue to challenge the difficult line between rising political dissent and rising extremism.
The answer to a question “To what degree the threat from Islamist fundamentalist and extremist groups is realistic and legitimate?” would be very tricky as religious fundamentalism and extremism are not a new phenomenon, nor is there anything novel in the government tendency to justify repressive policies by reference to the extremist and fundamentalist threat. Yet current government efforts to combat religious extremism and fundamentalism in Uzbekistan pose significant normative threats to the human rights framework.
The Uzbek government is increasingly taking actions in the name of counter-terrorism that violate basic human rights norms. Already the Uzbek authorities have tried to assimilate their own situations to the global “war on terror.” In Uzbekistan non-traditional religious groups and belief communities, and even non-violent dissident activities are being stigmatized by governments as extremists and terrorist. Such labels are used to rob the targeted groups of legitimacy, both domestically and internationally, and to allow governments to recast their struggles against these groups as counter-terrorism. The danger of this tendency, from a human rights perspective, is the presumption that normal human rights and humanitarian law constraints are relaxed in the fight against terrorism. Equally worrisome is the fact that such claims are often asserted in the hope of attracting the western support, or at least of tempering the West’s criticism of abuses.
It is difficult to tell now when and how the religious extremist and fundamentalist groups started finding supporters and adherents in Uzbekistan as it is equally complicated to indicate what has prompted this process, although independent observers point to dire social-economic situation, lack of available lawful channels for expressing public dissent and crackdown on political and civil liberties as a root causes of support the religious extremists find among some groups of the population. Anyway, it can be concluded that there is a legitimate threat of Islamist extremism and fundamentalism in Uzbekistan. However, this threat is too exaggerated by the Uzbek government in order to curtail civil and political rights and strengthen the power positions of the ruling political elite. The government policy on freedom of religion is repressive and that is why ineffective. Such policy on combating religious extremism and fundamentalism doesn’t convince the society but scares and makes more sympathetic and closer to the extremist and fundamentalist groups. In the Muslim dominated societies such strategy proves to be not effective.
The main law in Uzbekistan declaring the separation of state and religion is the Law of Uzbekistan “On freedom of conscience and religious organizations”. Though article 5 of the Law secures the principle of the separation of state and religion in Uzbekistan, there are other provisions of the Law that appear to contradict with this principle . The state secures the right to register all religious organizations and the regulation of their activities.
Several enacted laws, amendments, and decrees are of particular relevance. Beginning 1997, the government began closing all mosques and Islamic schools that did not register according to the 1991 religion law. The government does not provide any legal explanation for closing these religious institutions. Further, beginning January 1998 the Muslim Board of Uzbekistan, a state-created and controlled religious agency, ordered the removal of loudspeakers from all mosques, citing “preserving the social order” as a justification for that ban. In May 1998 the Uzbek Parliament amended the state religion law so that religious non-governmental associations are required to register with the government and any unregistered religious activity or unofficial religious speech is illegal. Again, the government has not provided any legal justification for imposing these burdensome and arbitrary restrictions, aside from alleged threats of Islamic fundamentalism. Additionally, the government imposed, by law, a state test that every religious leader must pass for authorization to lead Islamic worship or to teach. The test included questions outside the traditional sphere of a religious cleric and is often used used to weed out unwanted clerics.
The government enforces restrictions against activities and expressions of Islamic faith. Those restrictions negatively affect several activities and expressions of independent Islamic practice, including dress, worship, and education. For instance, the free exercise of Islam includes the right to wear certain types of clothing and to have a beard. The Uzbek police often arbitrarily forces men who wear beards to shave against their will. Female students and schoolgirls are threatened that they will be punitively expelled from school for wearing Islamic head scarves. Male students and schoolboys are also threatened that they will be expelled from school for attending the local mosques for daily prayers. The parents of the students and schoolchildren are forced to pledge in writing obliging not to allow their children attend mosques and Internet cafes. The very threat of expulsion, harassment, arrest or possible violence is enough to force submission to the state-imposed Islamic practice and inhibit religious freedom.
The government harasses, detains, and arrests independent Islamic leaders and followers on questionable evidence, which limits religious freedom and forces adherence to official Islamic practice. According to the Uzbek Constitution, no one may be subject to arrest or detention other than on legal grounds. Moreover, no one has the right to enter a home, conduct searches, or maintain surveillance except by lawful means. In practice, however, the law enforcement officials have detained or arrested pious Muslims on questionable charges and conducted searches of personal property without legal authorization.
Numerous Uzbek and international human rights groups have found out that persons accused and convicted for anti-state crimes [usually, religiously or politically motivated crimes] were subject to particularly rude conditions of detention and to harsh treatments. Religious prisoners, who are serving prison terms in the same prison facilities than other types of inmates, do not enjoy the same range of rights. Their rights, such as the right to correspondence and written communication with home or the right to receive food and other necessary hygiene items from home, are widely restricted. Letters and other written communications are widely censored and do very rarely reach the recipients. Food and hygiene items, addressed to the religious and political prisoners by their family and their friends, often do not reach them.
The religious prisoners, unlike other types of inmates, are annually forced by the prison authorities to write official letters of apologies to the name of the Uzbek people and the head of state. This process is video-recorded by the prison authorities. During such process the religious prisoners are also often requested to sign a paper in which he / she pledges to cooperate with the secret service and police after being released and report on his / her peers, fellow brothers / sisters and colleagues. This is a main condition for applying amnesty act on religious prisoner. The prison authorities really often deprive them of their rights. They tend to easily blame religious and political prisoners of any breach of internal regulations and rules and to put them into isolated cells. This is a useful tool, in the hands of the Uzbek authorities, to control detainees release, which could be possible under annual amnesty acts. If a prisoner breaks internal regulations twice and more, he might not be eligible for amnesty. Other inauspicious practices are developed by groups of inmates who are willing to cooperate with the prison administration. They are given official power and position, as members of squad. With the help of such squads, the prison authorities maintain a constant control over religious prisoners, stay informed about everything in the prison, and use them to build false criminal cases against the religious prisoners and to accuse them with breach of internal rules.
To date the penitentiary system in Uzbekistan, including the custodies run by the National Security Service remain out of monitoring, evaluation and reach of independent observers and NGOs. The overall responsibility for the penitentiary system is carried by the Main Directorate of the Ministry of Internal Affairs on penitentiary facilities but the National Security System maintains its pre-trial custody separately. Since 2003 the time when the issue of independent access to the penitentiary facilities of Uzbekistan was first touched by the UN Special Rapporteur on the issue of torture the Uzbek government has argued that the Ministry of Internal Affairs developed a special form of agreement on cooperation and partnership for independent observers, including NGOs, who wish to visit the penitentiary facilities. Ostensibly those independent observers who signed such agreements with the Ministry could visit penitentiary institutions. But this statement needs to be disallowed as it is not true.
We can guess about the situation in the penitentiary system of Uzbekistan only relying on the information and stories of former inmates, relatives of the inmates, and their lawyers. Periodic visits to penitentiary facilities by the Uzbek Ombudsman, inspections of the Ministry of Internal Affairs or Office of Public Procurator can not obviously be considered as independent and impartial.
The Uzbek Constitution permits the establishment of private, independent religious schools. The state is not required to provide religious education but, at the same time, may not proscribe religious education. The Uzbek government, however, violates the right to a private, religious education by arbitrarily closing independent religious schools and leaving only state-sponsored religious schools open. The government asserts that closures of independent religious schools are temporary, but offers no legal justification for the official action. Additionally, the Uzbek government prohibits independent religious lessons or sermons, and the government strictly controls the distribution of religious educational materials. In doing so, the government eliminates independent Islamic education, leaving the state-sponsored Islamic education as the only alternative.
The European Union should voice its concern that restrictive religious legislation and practical regulation present a grave problem for Uzbekistan’s future. Because of this frustration, some turn to extremism, just as many from poor urban and rural families in Uzbekistan turn to extremism because local elites have blocked their paths to advancement. Although the political elite in Uzbekistan blames external factors for the accelerated radicalization of youth in the country, the truth is that they themselves are the culprits. It is the repressive legislation and official regulation of freedom of religion that they have imposed on the poor that is to blame. It is the absence of opportunity caused by the stranglehold of the ruling political elite in the rural areas and cities that has led thousands of youths towards radicalism and religious extremism.
The European Union should also reiterate that what the people of Uzbekistan – the Muslim-majority country needs most is democratic governance, the removal of feudal constraints to personal advancement, and the creation of educational infrastructure that can once again propel the citizens to the forefront of human creativity. The ruling political elite fools the people by blaming on external factors problems caused exclusively by their own oppression and bad governance. Religion and its symbols are shamefully misused in order to conceal the absence of internal reform, to divert public attention towards external conflicts in order to prevent people from looking too closely at their own situation and its real causes. The roots of religious extremism and fundamentalism are internal, not external.
Prohibition of Torture
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.
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 and could be submitted.
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: 1744 38
In its replies to the United Nations Human Rights Committee in March 2010, the Uzbek government 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.
The government has 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 Art. 7 of the ICCPR. The Human Rights 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.
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 for prisoners 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.
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