Committee against Torture begins examination of Report of Turkmenistan

Committee against Torture
AFTERNOON

17 May 2011

The Committee against Torture this morning began its consideration of the initial report submitted by Turkmenistan on how it implements the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

Introducing the report, Hangeldy Serdarov, Deputy Chairman of the Supreme Court of Turkmenistan, noted that the Government had strengthened the legal foundation of the State and brought national legislation into line with international standards. Upon accession in 1999 to the Convention against Torture, the Government undertook to prohibit the use of torture and enshrined this in national legislation. The adoption of the new Constitution in 2008 included all the positions of principles related to the Convention against Torture. Mr. Serdarov said that cooperation with international organizations, particularly the United Nations was a fundamental part of the foreign policy of Turkmenistan and to ensure the timely preparation of national reports the Government was implementing a joint project on “Strengthening the National Capacity Building for the Protection of Human Rights” with the European Union and the United Nations. Within this project an information centre on human rights was opened at the Institute of Democracy and Human Rights where there would be the establishment and management of a database, library services and public lectures and roundtable discussions on human rights.

Felice Gaer, the Committee Expert who served as Rapporteur for the report, said that the initial report was nine years late and though it contained considerable information regarding the Convention and the laws of the Constitution it lacked empirical data. The Rapporteur raised concern at material received from United Nations bodies and non-governmental sources which indicated there was a lack of full cooperation with human rights mechanisms and asked what progress the Government had made following the Universal Periodic Review to enhance cooperation with United Nations mechanisms, especially allowing a visit by the Special Rapporteur on torture. Ms. Gaer raised issues concerning the independence of the judiciary and cited numerous cases of alleged due process violations including Mr. Nurliev, a Protestant pastor who was tried in a court where he did not understand the language; Mr. Komarovski who claimed he was tortured for five months, not brought before a judge and assigned a lawyer by the State who refused to raise his complaints of torture; and on the whereabouts of a former Foreign Minister who had disappeared.

Claudio Grossman, the Committee Chairperson who served as Co-Rapporteur for the report, raised a number of issues including if there was any plan to incorporate the definition of torture into domestic law; were detained individuals given access to an independent lawyer, doctor or to their family; could the prohibition against torture in the Constitution be negated under a state of emergency; and were there cases of diplomatic assurances for individuals who had been deported. The Co-Rapporteur also raised a number of cases brought before the Committee including women who were raped when they lacked permanent residency cards and a journalist who died in Police custody in 2006.

Other Committee Experts said it was essential that the country establish a national independent monitoring institution based on the Paris Principles and that an asylum law based on international standards should be adopted to ensure the full protection of refugees. Experts raised concerns about the link drawn between citizenship and nationality because there seemed to be the possibility to strip people with Turkmenistan nationality of their citizenship and about the Presidential power to revoke an individual’s citizenship, specifically how this process worked and whether there was a right of appeal.

The Turkmenistan delegation included representatives from the Permanent Mission of Turkmenistan to the United Nations Office at Geneva, the Parliament, the Ministry of Justice, the Supreme Court, the Council on Religious Affairs, the General Prosecutor’s Office, the Ministry of Interior, the Institute of Democracy and Human Rights and the Ministry of Foreign Affairs.

The next meeting will occur at 3 p.m. this afternoon when the Committee will convene to hear the response of Ghana to questions raised on Monday, 16 May. The Committee will hear the response of Turkmenistan to the questions raised this morning on Wednesday, 18 May, starting at 3 p.m.

Report of Turkmenistan

According to the initial report of Turkmenistan (CAT/C/TKM/1), the Constitution of Turkmenistan prohibits torture and other cruel, inhuman or degrading treatment or punishment. Article 23 provides that no one may be restricted in or deprived of their rights or sentenced or punished except in strict compliance with the law. No one may be subjected to torture or cruel, inhuman or degrading treatment or punishment, or to medical treatment (with drugs or by a physician) or experiments without their consent.

Criminal law prohibits abuse of power. In Article 182 of the Criminal Code the commission of acts by an official which entail serious violations of the rights and legal interests of citizens, organizations or the legally protected interests of society or State, is punishable by deprivation of the right to hold certain posts or engage in certain activities for up to 5 years, a fine of 20 to 40 average monthly salaries, corrective labour for up to 2 years or deprivation of liberty for up to 3 years.

The death penalty was abolished by a presidential decree in 1998. Evidence obtained in violation of the law is deemed to have no legal force and may not be used as a basis for an indictment or to substantiate evidence. Article 108 of the Constitution recognizes the right to professional legal assistance at all stages of legal proceedings; such assistance is provided to citizens and organizations by lawyers and by other individuals and organizations. Turkmenistan recognizes the primacy of generally accepted norms of international law and where an international agreement concluded by Turkmenistan provides otherwise than domestic law, the provisions of the international agreement are applied.

Turkmenistan extends the right of asylum to foreign nationals and stateless persons in accordance with universally recognized norms of international law. Foreign nationals in Turkmenistan have the right to appeal to the courts and other State bodies, and also to the diplomatic and consular offices of their respective countries. The provisions of article 3, paragraph 1, of the Convention and the provisions of the Constitution are the fundamental basis for not extraditing, expelling or returning persons to another State if there are grounds for believing that they will be subjected to torture.

Presentation of the Report

HANGELDY SERDAROV, Deputy Chairman of the Supreme Court of Turkmenistan, noted that the Government had strengthened the legal foundation of the State and brought national legislation into line with international standards. Upon accession in 1999 to the Convention against Torture, the Government undertook not to allow the use of torture and enshrined this in national legislation. The adoption of the new Constitution in 2008 included all the positions of principles related to the Convention against Torture. Article 6 stated that international treaty rules applied over national laws which made international legal commitments an inalienable part of the national legal system. A 2007 Presidential decree established a State Commission to consider complaints by citizens against the Police and Security Forces. In 2010 the Government adopted a decree to create a monitoring commission to ensure broader control over places of detention and in 2011 a new Criminal Sanctions Code took account of international conditions for the serving of sentences, the treatment and rehabilitation of detainees.

Mr. Serdarov said that cooperation with international organizations, particularly the United Nations, was a fundamental part of the foreign policy of Turkmenistan. To ensure the timely preparation of national reports the Government was implementing a joint project with the European Union and the United Nations called “Strengthening the National Capacity Building for the Protection of Human Rights”. Within this project an information centre on human rights was opened at the Institute of Democracy and Human Rights where there would be the establishment and management of a database, library services and public lectures and roundtable discussions on human rights.

The report was prepared with information from various ministries and public bodies and focused on improving the national legislation, national capacity on the monitoring of human rights, economic development, the creation of legal advice centres and the implementation of mechanisms to receive complaints by civilians on human rights abuses.

Questions by Experts

FELICE GAER, the Committee Expert who Served as Rapporteur for the Report of Turkmenistan, said that the initial report was nine years late and though it contained considerable information regarding the Convention and the laws of the Constitution, it lacked empirical material as neither data nor cases were highlighted. The Committee’s objective was to examine compliance with the treaty and it was difficult to review a report without data; the Rapporteur referred the delegation to General Comment 2 which informed States parties about the need to provide data to identify, compare and take steps to remedy actions that might be in violation of the Convention. As the Government had not accepted the procedures under Article 21 and 22, the Rapporteur wanted to know if these were under consideration along with the Optional Protocol to the Convention.

The Rapporteur was concerned at material received from United Nations bodies and non-governmental sources which indicated there was a lack of full cooperation with human rights mechanisms. At the Universal Periodic Review, a number of countries, including Uruguay recommended that Turkmenistan enhance cooperation with the Special Rapporteur on torture and the Committee would like to see the degree to which the Government had implemented these recommendations. It was two and a half years since the review and only one Special Rapporteur on freedom of religion and belief had visited the country. The Committee had received information on allegations of repression of civil society, including arrests and the registration of civil society organizations in 2002 following the assassination attempt of the former President. In 2010, the President instructed the Ministry of National Security to ‘lead an uncompromising fight against those who slander the democratic secular State’, and the Rapporteur wanted to know if this meant that actions would be taken against human rights activists.

Ms. Gaer raised issues concerning the independence of the judiciary as the Committee had received alleged due process violations and mentioned the case of Mr. Nurliev, a Protestant pastor who was tried in a court where he did not understand the language. Article 26 of the Criminal Procedure Court specified that everyone had the right to obtain legal assistance and the Rapporteur asked the delegation to clarify how many independent defence lawyers existed and what training they received. What type of legal aid was available and what measures were taken to implement the conclusions of the Human Rights Committee in favour of the case of Mr. Komarovski who claimed he was tortured for five months and not brought before a judge and was assigned a lawyer by the State who refused to raise his complaints of torture.

Concerning the existence of national human rights institutions in Turkmenistan there were three bodies: the Prosecutorial Authority, the Presidential Commission created in 2007 to consider complaints, and the National Institute for Human Rights and Democracy. The Rapporteur noted the President’s extensive involvement in the justice system, the Parliament and the national human rights body, which was directly under the Office of the President, and asked what measures the President took to order investigations of those responsible for torture and to provide remedy for victims, please provide data on cases.

Was there access to an independent doctor or any medical assistance provided for in the legal system for detainees and was there an ability to notify family members for those placed in temporary holding facilities? The Rapporteur raised the concern that individuals were arrested for trying to collect defamatory information about Turkmenistan and that this was the basis for denying them basic rights. Ms. Gaer asked for information on the whereabouts of the former Foreign Minister who had disappeared.

The Rapporteur noted that the Constitution prohibited torture but did not define it and said that the Criminal Code was confusing, particularly Articles 107, 108 and 113, which seemed in violation of some parts of the Convention. Could the delegation provide examples of how the Government had applied the Convention in a court case? The Rapporteur asked for data on the number of persons expelled or returned from Turkmenistan, to which countries and any instances in which an individual claimed to a court that he should not be returned because he was in danger of being tortured. Was it the President alone who determined who would receive asylum and were there plans to transfer this responsibility to the judiciary.

CLAUDIO GROSSMAN, the Committee Chairperson who Served as Co-Rapporteur for the Report, asked if there was any plan to incorporate the definition of torture into domestic law as required by Article 1 of the Convention and he raised concerns about individuals who had died under custody. Were these individuals given access to an independent lawyer, doctor or to their family? It appeared that under the Constitution the protections against torture could be negated under a state of emergency which was a violation of the Convention. Were there cases of diplomatic assurances for individuals who had been deported? Concerning the Criminal Code, there was a reference to systematic beatings, a requirement that was not part of the Convention. Could the delegation provide information on this requirement? Could the Committee have a copy of the Criminal Code with proposed amendments and was there any plan by the Government to incorporate Article 1 into domestic law.

The Co-Rapporteur raised a case brought to the Committee by Amnesty International concerning a group of women who were raped when they lacked permanent residency cards, could the delegation provide information on this case and the investigation that followed. Was there an opportunity to apply civil liability in place of criminal liability? Could the delegation provide copies of the training materials for public officials and how frequently did training occur? Were there assessment procedures to determine the efficacy of the training? The Co-Rapporteur asked if there were visits by independent organizations to detention facilities because the Committee was aware that the Government had rejected a visit by the International Committee of the Red Cross and by the Special Rapporteur on torture. Was there a complaint mechanism for the lack of prosecution by the State on human rights abuses and was there a general register for detainees in prison.

Mr. Grossman raised the case of a journalist who died in Police custody in 2006, had the Procurator General made an investigation, how many people were interviewed and what were the results. Were there any cases of individuals who had been sentenced for an act of torture and could the delegation provide details on them and was the Government considering video recording of interrogation procedures? The Co-Rapporteur asked about overcrowding of prisons as there was 3.3 times more occupancy than the capacity allowed and what were the plans to deal with penal overcrowding. Were there doctors trained in women’s health for female detainees? What was the process to become a lawyer, how many lawyers were there in the country?

A Committee member highlighted the High Commissioner’s comments on the need to strike a fairer balance in the country between executive, legislative and judiciary powers and asked about judge career structure, their level of independence when appointed and how they operated in relation to other stakeholders. What was the link drawn between citizenship and nationality because there seemed to be the possibility to strip people with Turkmenistan nationality of their citizenship.

An Expert asked the delegation to provide detailed information on the Procurator’s visits to detention facilities because non-governmental organizations had informed the Committee that it was impossible for international organizations such as the International Committee on the Red Cross and Medicine Sans Frontier to carry out independent monitoring on places of detention. The report made reference to the interdepartmental commission on compliance with human rights mechanisms, could the delegation provide more information on the commission’s work.

A Committee member said it was essential that the country establish a national independent monitoring institution based on the Paris Principles because there seemed to be a problem with impunity. Turkmenistan must accept an independent mechanism for monitoring human rights. An asylum law based on international standards must be adopted to ensure the full protection of refugees. An Expert raised concerns about the treatment of persons with disabilities in hospitals or institutions where they were kept against their will and asked the delegation to provide information on how the Government was in compliance with the human rights of persons with disabilities.

An Expert asked about the Presidential power to revoke an individual’s citizenship and how this process worked and whether there was a right of appeal. Was the legal profession limited in any way, what were the conditions for acceding to the legal profession? Were human rights taught as a subject to students and were conscientious objectors accepted or were they obliged to engage in military service.

A Committee member raised the case of an individual who was received in Norway in 2002 as a refugee and when he returned to Turkmenistan in 2008, he was arrested. As he still held a refugee passport in Norway, the Expert needed to know what charges were brought against him. The Expert noted the poor living conditions for female prisoners and the process of isolating women as a punishment and the use of collective punishment. Was corporal punishment prohibited in all schools and homes? The Expert raised questions about violence in the military through hazing. The Expert noted the dire state of the health system, the poor conditions of hospitals and stressed the need to provide good quality health care.

The Expert asked about the granting of citizenship status to internally displaced persons and why these individuals were not already citizens. A Committee member raised concerns regarding sexual violations and acts of torture in female prisons where there were reported cases of physical abuse, beatings, rape and torture against female inmates and where in 2009, eight women committed suicide while in detention.

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