TAJIKISTAN: Deadly secrets: The death penalty in law and practice

The death penalty in law and practice

Official secrecy surrounds the death penalty in Tajikistan. The picture that Amnesty International has been able to build is incomplete, yet alarming. With random and relentless cruelty, prisoners are executed in secret after unfair trials, with no warning to their families. According to the evidence gathered by Amnesty International, none of the prisoners sentenced to death in Tajikistan received a fair trial. Most, if not all, were tortured.

 Several different prisoners have given detailed accounts naming the same investigator, but no action has apparently been taken to investigate the truth of these allegations. Testimony extracted under torture has been admitted as evidence and used to condemn prisoners to death.

Relatives of death row prisoners are subjected to a form of mental cruelty. They are kept in a state of complete uncertainty about the fate of the person they love and are deprived of all rights once the prisoner has been executed.

Amnesty International believes that the secrecy surrounding all aspects of the death penalty, the cruel and random way in which it is applied and the failures of the criminal justice system mean that Tajikistan is violating internationally guaranteed human rights. It calls on the Tajik authorities to commute death sentences, to place a moratorium on executions, and to abide by Tajikistan's international human rights obligations.

Introduction

Secret executions after unfair trials take place every year in Tajikistan. Many

of those sentenced to death claim they were tortured. The families of death row

prisoners are given so little information that they often do not know whether

their loved one is alive or dead. Since Tajikistan has continued the Soviet

tradition of treating the death penalty as a state secret, it is impossible to

determine the true extent of the problem, but Amnesty International learned of

74 death sentences in 2001, and five executions. In the first 6 months of 2002

Amnesty International learned of 29 people who had been sentenced to death.

Many people convicted of capital offences allege that they were tortured before

being charged. Several different prisoners have given detailed accounts citing

the name of the same investigator from the Interior Ministry's Sixth

Directorate. No action has apparently been taken to investigate the truth of

these allegations. Amnesty International knows of no instance in which a Tajik

court has suspended a case while torture allegations were sent for

investigation, nor of any case in which evidence extracted under torture has

been discounted. On the contrary, confessions reportedly elicited through

torture have been used to convict numerous prisoners who have been sentenced to

death.

International human rights treaties state that the death penalty may only be

imposed after a judgment by a court whose procedures meet minimum international

standards of fair trial. Trial proceedings in Tajikistan fall far short of these

standards. For example, defendants have been denied access to lawyers, senior

state officials have publicly proclaimed defendants guilty before the start of

their trial, courts have ignored torture allegations and have refused to allow

the accused to make a closing statement. In some cases the trials of people

facing the death penalty have been held in secret.

The incomplete picture of the death penalty in Tajikistan that Amnesty

International has been able to build in the face of official secrecy is one that

is relentlessly cruel and arbitrary.

Relatives of prisoners on death row in Tajikistan are subjected to a form of

mental cruelty. They are kept in a state of complete uncertainty about the fate

of the person they love, often discovering that clemency has been refused only

when the prisoner has been removed without warning to the place of execution.

They have no right to see the condemned person to say goodbye before the

execution and are deprived of all rights once the prisoner has been executed

such as the possibility of collecting the prisoner's personal belongings, or the

body for reburial. They are not even told where the grave lies. Amnesty

International believes that this may amount to cruel, inhuman or degrading

treatment as prohibited under international law.

The secrecy surrounding all aspects of the death penalty, the cruel and random

way in which it is applied and the failures of the criminal justice system mean

that Tajikistan is violating internationally guaranteed human rights. In all the

cases on which Amnesty International has information, trial proceedings violated

international human rights treaties to which Tajikistan is party, particularly

those guaranteeing a fair trial and freedom from torture. Furthermore, the Tajik

authorities do not always apply in practice their own Codes of Criminal

Procedure and Criminal Execution, inadequate as these are.

At least four people have been executed although the (UN) Human Rights Committee

the expert body that monitors the International Covenant on Civil and Political

Rights (ICCPR) had requested a stay of execution. Tajikistan has ratified the

ICCPR and is legally bound by its provisions. It has also agreed to allow the

Human Rights Committee to hear complaints from individuals in Tajikistan, yet it

has blatantly undermined this procedure by executing people while the Human

Rights Committee was examining their cases.

Amnesty International opposes the death penalty in all circumstances, on the

grounds that it violates the right to life and constitutes the ultimate cruel,

inhuman and degrading punishment. This report is a contribution to a worldwide

effort by human rights activists to press the Tajik authorities to commute death

sentences and place a moratorium on executions. Amnesty International supporters

and others will campaign against the secrecy surrounding the death penalty in

Tajikistan and will call for torture allegations to be promptly and impartially

investigated. These efforts are aimed at helping individual prisoners facing the

death penalty and their relatives, as well as lending support to Tajik

non-governmental organizations and state officials sympathetic to the arguments

for abolition of the death penalty.

1. Political context: the Soviet legacy and civil war

Tajikistan became independent from the USSR in September 1991 then rapidly

descended into a 5-year civil war. The warring sides signed a peace agreement in

1997, but progress towards achieving stability has been slow.

The 1997 peace agreement1 attempted to reconcile the warring parties and build

institutions which they would share in future. It provided for a National

Reconciliation Commission, composed of equal numbers of government and

opposition representatives,2 and a power-sharing agreement under which the main

opposition group would receive 25 per cent of ministerial posts in the

government. The agreement also provided for an exchange of prisoners and an

amnesty.

According to the amnesty,3 prisoners convicted of violent crimes during the

conflict were allowed to request a review of their case. This extended to

prisoners on death row, many of whose cases were reviewed by the presidential

Clemency Commission4 and their death sentences subsequently commuted to

imprisonment. For some months a de facto moratorium on the death penalty appears

to have operated in the wake of this agreement. The moratorium ended in November

1998 when the Prime Minister's younger brother Abdulkhafiz Abdullayev was

executed, convicted of having plotted to assassinate President Rakhmonov. Since

then the authorities have arrested scores of former opponents on criminal

charges and they have been sentenced to death. In cases on which Amnesty

International has received detailed information, prisoners appear to have been

convicted without adequate proof of the charges against them. The death penalty

has also been used extensively in cases with no visible political dimension.

Official secrecy has made it extremely difficult to obtain information on

individual death sentences. Amnesty International learned of 15 people sentenced

to death by courts and two executions in 1999, but believed the true figure was

higher. In 2000, 18 death sentences were reported. In 2001 the figure of known

death sentences rose to 74, with five executions. In the first 6 months of 2002

Amnesty International learned of 29 people who had been sentenced to death, nine

of them known formerly to be members of the opposition.

The civil war

1990 saw the beginnings of a multi-party political system in Soviet Tajikistan.

A Democratic Party was formed, followed by an Islamic Revival Party, and in

December 1990 multi-party politics was legalized. In 1991, however, this process

ground to a halt when Rakhmon Nabiev, the man who formerly led the Soviet Tajik

Communist Party, was elected the first President of independent Tajikistan amid

allegations of massive fraud. His election polarized society and sparked a

conflict that by June 1992 had spiralled out of control.

The war was fought mainly between pro-government supporters and a so-called

United Tajik Opposition (UTO). The pro-government forces consisted of former

communist officials whose power base was in the districts of Kulab and Khujand,

and ethnic Uzbeks living in Tajikistan. The UTO was an alliance of democrats,

Tajik nationalists, and some Islamists, and was strongest in the mountainous

east of the country.

There were roughly three stages to the war. Two attempts to resolve the

situation through political means failed in 1992 because of the weakness of the

government's position. In May, for example, President Nabiev agreed to form a

coalition "Government of National Reconciliation" (GNR) and to give one third of

his ministerial posts to the opposition, but his own supporters rejected this

solution. A cease-fire was then agreed in July by more than 80 government and

opposition figures, but it had no effect on the people fighting. Bloodshed

continued and in August, after 100 armed opposition supporters stormed the

Presidential palace in Dushanbe, President Nabiev resigned. He was replaced by

the current President, Imomali Rakhmonov, in December 1992.

His arrival signalled a new and uncompromising phase in the war. Within weeks he

had formed a government made up of communists, had banned opposition parties and

newspapers, and had revoked GNR legislation. He speedily recaptured the capital,

Dushanbe, and made punitive forays into the east and south of the country where

the alliance of Democratic and Islamist forces was based. In a report called

Hidden terror, political killings, "disappearances" and torture since December

1992,5 Amnesty International expressed concern that government forces had

committed gross violations of human rights in southern Tajikistan. Around one

million people are believed to have fled abroad to escape the conflict or to

have been killed in the course of this fighting, and infrastructure costing US$

7 billion is said to have been destroyed. In 1993 the new State Prosecutor the

Procurator General announced that he had opened criminal proceedings against

opposition leaders, most of whom were by then living in exile in Iran,

Afghanistan and Moscow. Many were sentenced to death in absentia.

Between 1993 and 1997 the civil war entered a third phase, as Tajikistan's

neighbours and the broader international community attempted to find ways of

resolving the roots of the conflict. Efforts at international mediation between

1993 and 19956 met with limited success, however. The Russian Federation Foreign

Ministry brokered a series of negotiations in Moscow and Tehran to enable the

parties to agree an agenda for future discussion. This would include talks about

a cease-fire; the return of refugees and internally displaced people; the

legalization of opposition parties and a power-sharing agreement for Tajikistan

these last 2 being the priority of the UTO negotiators. Cease-fire violations

continued during this period and only intensified after opposition forces were

excluded from Presidential and parliamentary elections in 1994.

It was the victories of the radical Islamist Taleban forces in neighbouring

Afghanistan from 19957 onwards that convinced both sides to negotiate peace in

earnest, and 2 years later the peace agreement was concluded. In 1995 President

Rakhmonov also suspended the death sentences that had been passed on opposition

members in 1993.

The period after the peace agreement

1999 saw significant cooperation between the 2 sides and paved the way for a

constitutional referendum in September, presidential elections in November, and

parliamentary elections in the spring of 2000.

At ministerial level posts were shared at least nominally in accordance with the

peace agreement, but there was little or no sharing of power at lower levels. By

2001 assassinations of high-ranking politicians reflected the tensions between

and within the parties to the 1997 agreement. In February 2000 there was an

alleged attempt to assassinate the Mayor of Dushanbe. In April three

unidentified killers shot dead the former Deputy Minister of Internal Affairs,

Habib Sanginov, with two bodyguards and his driver in Dushanbe. In July a

foreign policy adviser to the President was shot dead at his home in the city,

and in September the Minister of Culture was also shot dead by unidentified

gunmen in Dushanbe.

As a neighbour of Afghanistan that is traditionally opposed to the Taleban,

Tajikistan's international standing has risen dramatically since September 2001,

as has the personal standing of President Rakhmonov. There are signs that he may

be using the so-called international "war against terrorism" as a pretext for

settling scores with former civil war opponents. Tajikistan's very flawed legal

system and its traditionally widespread recourse to the death penalty make this

an alarming proposition.

Scores of former opposition fighters have been arrested in connection with acts

of political violence and are being investigated on charges that are potentially

punishable by death. At the time of preparing this report, around 90 people were

in detention in northern Tajikistan on suspicion of supporting an invasion

attempt by the opposition warlord Makhmud Khudoyberdiyev in 1998. Approximately

another 80 have been arrested on suspicion of supporting Abdujalil Khomidov, an

influential politician in Khujand alleged to have conspired to install Makhmud

Khudoyberdiyev in power. At a press conference in June 2002, President Rakhmonov

implied that more political arrests might follow when he alleged that

"terrorists" had infiltrated law enforcement agencies in the north and south of

the country.

Tajikistan's changing international profile

Tajikistan is 90 per cent mountainous and has a population of around 6 million

people. It was the poorest republic of the USSR, dependent on cotton growing for

its income and with barely 10 per cent of its land cultivable. Since 1991 its

economy has suffered seriously from the dismantling of the Soviet trading

system, the civil war from 1992 to 1997 and then the collapse in 1998 of the

rouble in the Russian Federation, its main trading partner. Four years of

drought have further hampered its efforts to recover. Increasingly, young Tajik

men have moved to the Russian Federation to do labouring work and send back

money to support their relatives.

Since it gained international strategic significance as part of the so-called

"war against terrorism", Tajikistan has started to benefit from increased

financial support from foreign institutions and governments. The USA, the

European Union, development banks in Asia and Europe, and individual foreign

governments have all increased their investments in Tajikistan. In 2002 they

promised the equivalent of US$ 322 million in foreign aid to Tajikistan,

compared with the US$ 51 million donated during the whole of 2001.

With the increase in its international contacts, Tajikistan has also taken some

steps in the field of human rights. These have largely been in the context of

co-operation with the UN and the Organization for Security and Co-operation in

Europe (OSCE), both of which have missions in Dushanbe. Since 2001, 3 round

tables on the death penalty have taken place in Dushanbe and Khujand with the

participation of government officials, the OSCE, and the non-governmental Soros

Foundation in Tajikistan. They concluded with recommendations to review existing

practices and explore the introduction of a moratorium on death sentences and

executions. Over the past year newspapers have also published several articles

on the death penalty by human rights lawyers and retired judges.8 To date their

calls for a moratorium, however, have been quickly countered by press statements

from serving judges and prosecutors, arguing that Tajikistan is not yet ready to

take this step.

June 2002 saw the first meeting of an inter-departmental governmental Human

Rights Commission in Tajikistan to examine the state's reporting commitments to

UN treaty bodies, with priority being given to the ICCPR and the Convention for

the Elimination of All Forms of Discrimination against Women. This commission

will presumably have responsibility to determine a clear procedure for the Tajik

authorities to respond in future to requests from the Human Rights Committee,

including requests concerning prisoners on death row. Until now Tajikistan's

response has been completely inadequate, resulting in the execution of four

prisoners Gaybullojon Saidov and Andrey Rebrikov and the brothers Dovud and

Sherali Nazriev while their cases were still under examination by the Committee.

By the end of 2002 Tajikistan should also report to the UN Secretary-General on

its use of the death penalty and observance of international safeguards in doing

so, and also the reforms it has made in law and practice in this area. This

reporting is an element of Resolution 2002/77 of the UN Commission on Human

Rights, adopted in April 2002. Proposed by the European Union and voted for by

the Russian Federation and 24 other states, it also calls on states that retain

the death penalty to establish a moratorium on executions; to make available to

the public information on the imposition of the death penalty; and to ensure

that all legal proceedings conform to minimum guarantees for a fair trial.

2. Legal context: entrenched secrecy

Tajikistan's international obligations

Tajikistan ratified the UN's International Covenant on Civil and Political

Rights (ICCPR) after the end of its civil war in January 1999. Under Article 6

of this treaty, the authorities are obliged to ensure, amongst other things:

that no one in Tajikistan or subject to its jurisdiction is arbitrarily deprived

of their life;

that sentences of death are imposed only for the most serious crimes;

that all people sentenced to death have the right to seek pardon or commutation

of their sentence;

that death sentences are imposed only after a judgment by a competent court and

not in a manner that contravenes other provisions of the treaty.9

The most relevant "other provisions of the treaty" are those that establish

minimum requirements for a fair trial and prohibit torture, namely Articles 9,

14 and 7 of the ICCPR. From the case materials and legal documentation which are

available to Amnesty International, it would seem that Tajikistan's conduct of

capital trials more often violates these provisions than not. Chapter Three

examines in more detail the way that the Tajik authorities have investigated and

tried cases punishable by death.

In 1999 Tajikistan also ratified the Optional Protocol to the ICCPR which grants

the Human Rights Committee competence to consider complaints from individuals

who believe that their rights under the ICCPR have been violated.

Tajikistan has not ratified the Second Optional Protocol to the ICCPR, which

would oblige it to abolish the death penalty for all crimes in times of peace

and war.

As a member of the OSCE, Tajikistan has also committed itself to making public

information about its use of the death penalty, in accordance with the 1990

Copenhagen Document.10

The (UN) Human Rights Committee

The Human Rights Committee monitors the implementation of the International

Covenant on Civil and Political Rights (ICCPR). Its 18 independent expert

members "of high moral character and recognized competence in the field of human

rights" are nominated by the states party to the ICCPR.

The Committee examines reports submitted to it periodically by states party to

the ICCPR on measures they have adopted to give effect to the rights in the

Covenant. After a public dialogue with representatives of the state in question,

the Committee may recommend appropriate action. Once a year the Committee

submits a global report on its work to the UN General Assembly.

An Optional Protocol to the ICCPR entered into force together with the ICCPR in

1976. This allows the Committee to consider complaints from individuals who

believe that rights protected by the ICCPR are being violated, provided that the

state in question is party to the Optional Protocol and the individual has

exhausted all domestic remedies. If a complaint is admissible, the Committee

asks the state concerned for "written explanations or clarifications" within six

months. In the case of individual complaints involving a death sentence, the

Committee usually asks the state to stay the execution pending its examination

of the case.

The Committee considers the complaint in private meetings, then makes public its

views and findings, including any remedy that should be provided. A summary of

its activities under the Optional Protocol is included in its Annual Report to

the UN General Assembly. The website of the Human Rights Committee can be found

at www.unhchr.ch

Tajikistan ratified the UN Convention against Torture and Other Cruel, Inhuman

and Degrading Treatment or Punishment (Convention against Torture) in 1995. The

Tajik Constitution contains a strong prohibition against torture,11 which is

echoed in the Criminal Execution Code adopted in 2001, Article 10 of which

prohibits "torture and other cruel, inhuman and degrading treatment". An

extremely disturbing thread running through the reports of death penalty cases

reaching Amnesty International is that suspects, including all the individuals

named above, claim they were tortured before being charged.

Tajikistan has a poor record of respecting its obligations and commitments under

international human rights treaties on the death penalty. Part of the mandate of

the current UN Mission in Dushanbe known by its acronym in English as UNTOP is

to train Tajik officials in how to meet the country's international human rights

obligations.

Although Tajikistan has agreed to allow the Human Rights Committee to hear

complaints from individuals, the Tajik authorities have placed restrictions on

access to the Human Rights Committee for prisoners on death row, as well as

soldiers undergoing punishment in disciplinary cells. According to the Criminal

Execution Code adopted in August 2001,12 death row prisoners cannot send

communications directly to international organizations, but must route them via

the prison administration, where they risk being opened or destroyed. There is

no known case in which the Human Rights Committee has considered an application

from a prisoner imprisoned on death row in Tajikistan.

In at least five cases, however, Tajik human rights lawyers have submitted

complaints to the Human Rights Committee on behalf of people sentenced to death.

In one case, the death sentence passed on Dilfuza Numonova for allegedly

murdering her lover was commuted to 15 years' imprisonment on 25 July 2000,

reportedly following the involvement of the Human Rights Committee. Amnesty

International wrote to President Rakhmonov welcoming this commutation.

In another prominent case from the same year, however, Gaybullojon Saidov and

his co-defendant Andrey Rebrikov were executed while the Human Rights Committee

was examining Gaybullojon Saidov's case. The prisoners were executed even though

the Committee had notified the Tajik authorities that they were considering the

case and had requested a stay of execution. Gaybullojon Saidov was one of more

than 90 people arrested in connection with an invasion of the north of

Tajikistan launched from Uzbekistan in 1998.

In the course of preparing this report, Amnesty International learned of the

execution on 21 June 2002 of the brothers Dovud and Sherali Nazriev, whose death

sentences the Human Rights Committee took up for consideration in January 2002.

On 10 January 2002 the Human Rights Committee had asked the Tajik authorities to

provide the Committee with further information on their cases and to freeze the

sentences for 6 months until 10 July 2002.

International standards

The following international treaties and non-treaty standards are among those

relevant to the death penalty in Tajikistan:

Universal Declaration of Human Rights

International Covenant on Civil and Political Rights

Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or

Punishment (Convention against Torture)

General comment on Article 6 of the International Covenant on Civil and

Political Rights

UN Economic and Social Council resolution 1984/50

UN Economic and Social Council resolution 1989/64

UN Economic and Social Council resolution 1996/15

UN General Assembly resolution 32/61 of 8 December 1977

UN Commission of Human Rights resolution 1998/8

Second Optional Protocol to the International Covenant on Civil and Political

Rights

1990 Copenhagen Document of the OSCE Paragraph 17.8

UN Commission on Human Rights Resolution 2002/77 of April 2002

The response of the Tajik government to this request was deeply confused, and

confusing. President Rakhmonov is reported to have sent the cases of the two

brothers for further investigation in May 2002, although the procedural basis

for this is not clear to Amnesty International. On 25 June 2002, when Dovud

Nazriev's wife went to visit him in the prison in Dushanbe, she discovered that

he had been transferred 5 days earlier to Qurgantoppa, where most known

executions have been carried out.

In response to international expressions of concern about this case, government

representatives denied receiving requests from the Human Rights Committee or

said that the order for execution had been signed after the 6-month stay on

execution requested by the Committee had expired on 10 July 2002. One Tajik

Foreign Ministry official, however, reportedly confirmed receiving the Human

Rights Committee's request, but said he had been "under no obligation" to pass

it on.

Both the ICCPR and the Convention against Torture place the Tajik authorities

under an obligation to investigate all allegations of torture and to ensure that

confessions elicited by such means are not admitted as evidence in court.13

Nevertheless, Amnesty International knows of no instance in which a Tajik court

has suspended a case while torture allegations were sent for investigation, nor

any in which a person suspected of being responsible for torture has stood

trial. Several suspects have described their alleged torture in detail, citing

the name of one and the same investigator from the Interior Ministry's Sixth

Directorate as the person responsible. This official is therefore easily

identifiable, but, to date, the information available to Amnesty International

suggests that the authorities have made no attempt to investigate his conduct

with a view either to clearing his name, or punishing him. Chapter Three looks

in more detail at the way the Tajik authorities have typically investigated and

tried capital cases.

The death penalty in Tajikistan's domestic law and practice

Tajikistan's international human rights treaty obligations form an integral part

of its domestic law, according to the 1994 Constitution of the Republic of

Tajikistan.14 In cases where they diverge from national laws, international