人权事务委员会审议塔吉克斯坦的报告（部分翻译）

人权事务委员会

2013年7月10日

人权事务委员会今天上午结束了对塔吉克斯坦提交的有关其实施《公民权利和政治权利国际公约》规定的第二次定期报告的审议。

塔吉克斯坦司法部长鲁斯塔姆·门捷列夫在介绍该国报告时表示：塔吉克斯坦正努力确保对《公约》规定的有效应用。该国已建立起包括人口贩卖、移民及儿童权利委员会在内的许多人权机构。目前正在对少年司法制度进行改革，并于2009年开始暂停使用死刑。拘留条件得到了改善，以使他们符合国际标准，一项新的刑事诉讼法也在2010年生效。宪法保障公民的言论自由，根据2003年通过的公众结社相关法律规定：禁止建立和运营激发种族、民族、社会和宗教仇恨的社团。

委员会询问了有关公约应用的问题，并询问是否有任何法院判决基于其规定或曾使用这些规定来解读国内法。委员会提出了关于性别平等和家庭暴力的问题，专家们对塔吉克斯坦暂停使用死刑表示赞赏。互动对话中提出的其他问题包括司法独立、公平审判的权利、寻求庇护的程序、限制公众结社活动的规定及宗教和表达自由权。

门捷列夫先生在闭幕发言中感谢委员会的建设性对话，并表示塔吉克斯坦将与人权高专办、人权理事会和联合国条约机构继续合作。

委员会主席奈杰尔·罗德利也在初步总结性发言中表示：委员会意识到塔吉克斯坦仍是一个处于转型中的社会，该国独立已超过四分之一个世纪。罗德利先生赞赏地指出：该国已经开始暂缓死刑。

塔吉克斯坦代表团成员包括来自司法部、对外事务部、内政部、司法委员会、共和国总统执行办公室、妇女与家庭关系委员会、检察官办公室、宗教事务委员会和该国常驻联合国日内瓦办事处代表团的代表。

委员会关于塔吉克斯坦报告的结论性意见和建议将在7月26日星期五委员会会议结束时发布。

人权事务委员会将于今天下午3点恢复工作，届时将审议印度尼西亚的首次报告（CCPR/C/IND/1）。

塔吉克斯坦的报告

点击此处阅读塔吉克斯坦关于履行《公民权利和政治权利国际公约》规定的第二次定期报告（CCPR/C/TJK/2）。

Presentation of the report

RUSTAM MENGELIEV, Minister of Justice of Tajikistan, presenting the report (CCPR/C/TJK/2), said that Tajikistan was striving to ensure the effective application of the provisions of the Covenant.  Since its independence, Tajikistan had acceded to seven fundamental international human rights conventions and many human rights structures had been established, including commissions on human trafficking, migration, and the rights of the child.  Several United Nations Special Rapporteurs had recently conducted visits to the country, including the mandate holder on torture. 

The juvenile justice system was undergoing reform and a moratorium on the death penalty had been introduced in 2009.  Conditions of detention had been improved in order to bring them in line with international standards and a new Criminal Procedure Code had entered into force in 2010.  Laws on participation in trials and conditions of detention had been adopted in 2012, and ensured that medical care was provided to all detainees.  In addition, torture and ill-treatment were explicitly banned by the Criminal Code.  The Office of the Ombudsman was expected to prevent and seek prosecution for any acts of torture.  The judiciary was an independent body and its reform was an on-going process. 

The Criminal Code had been amended in order to decriminalize specific acts related to the right to peaceful assembly and participation in political life.  The Constitution guaranteed the freedom of speech and a law on mass media had been adopted in 2013.  Bilateral dialogues on human rights had been held with Switzerland and the United States.  A National Plan had been adopted in order to implement all recommendations received in the framework of the Universal Periodic Review, and international instruments ratified by Tajikistan were part of its domestic legislation. 

Legislation on the human rights Ombudsman, which enjoyed “B status” according to the International Coordinating Committee of National Human Rights Institutions, had been adopted in 2008.  The first Ombudsman had been appointed in 2009 and, among other legal reforms, a law ensuring equal opportunities between men and women in all spheres of life, a law on the prevention of domestic violence and the provision of medical and material assistance to victims, a law ensuring the protection of the victims, and a decree creating a Commission to combat human trafficking, had also been adopted.  Programmes to improve gender equality were in operation.  Amendments to the Family Code had raised the minimum age of marriage in order to ensure that girls went to school.  Every person had the right to education, but an increase in girls’ school drop-out rates had been noted in the context of the economic crisis and cultural factors also played a role in school drop-outs.   

Concerning the abolition of the death penalty, a moratorium was presently in force and Tajikistan intended to ratify the Second Optional Protocol to the Covenant.  Parents had no right to harm the physical and mental health of children and work that would be harmful to the children's health should be avoided, as well occupations that would impair their normal physical and psychological development.  All male citizens between the ages of 18 and 27 were subject to military conscription in the Armed Forces. 

Tajikistan had acceded to the International Convention on the Status of Refugees of 1951, which ensured the regulation of asylum-related issues in accordance with international standards.  Currently a total of 2,374 refugees and asylum seekers resided in Tajikistan, out of which 1,839 people had received refugee status and 535 were asylum seekers.

Tajikistan paid significant attention to the prevention of torture and statistics showed that complaints for acts of torture had decreased.  In May 2012, the Special Rapporteur on Torture, Juan Mendez, had visited Tajikistan and noted with appreciation efforts to combat torture, the role of Government agencies in human rights protection, the work of correctional facilities in improving conditions of imprisonment, as well as other positive developments in the area.  National plans of action for the implementation of recommendations from the Special Rapporteur on Torture, as well as those from the Committee against Torture, had been developed.  In 2012, a definition of torture in full compliance with article 1 of the Convention against torture had been incorporated into the Criminal Code.  According to article 18 of the Constitution, the security of the person was guaranteed by the State and no one should be subjected to torture.  Article 10 of the Criminal Procedure Code stated that individuals in criminal proceedings could not be subjected to violence, torture and other cruel, inhuman or degrading treatment.

After its independence, Tajikistan had paid special attention to the judicial protection of human rights and, according to Article 19 of the Constitution, every citizen benefitted from judicial protection.  Everyone had the right to seek the review of a case by a competent and impartial court and no one should be subjected to arrest or detention without legal authority.  The right to have access to a lawyer from the beginning of detention was also established and, according to article 49 of the Criminal Procedure Code, lawyers were allowed to participate in the proceedings of criminal cases since the beginning.

The Constitution guaranteed citizens’ freedom of speech, freedom of the press, and the right to use media.  State censorship and prosecution for criticism were prohibited.  No licenses were needed for newspapers, but they were needed for TV and radio stations.  According to national legislation, citizens had the right to organize and participate in political parties, and eight political parties currently existed.  In accordance with the law on public associations adopted in 2003, the establishment and operation of associations advocating racial, nationalist, social or religious hatred were prohibited.

Questions by the Experts

Progress had been made since the first constructive dialogue held with Tajikistan and the Committee was interested in the content of laws but even more in what happened in practice.  Inquiring about the application of the Covenant, Experts asked if any court decisions had been based on the provisions of the Covenant or used these provisions to interpret domestic law. 

The lack of diversity in the Ombudsman’s staff and inadequate funding were also noted.  Were there plans to improve the capacity and independence of the Ombudsman?  The level of participation and representation of women in public and political life was low.  How was the fact that the number of women in senior Government positions did not increase during the reporting period explained?  Tajikistan had committed itself to ratify the Second Optional Protocol to the Covenant, what was the timeframe and difficulties in this regard?

The report of the Special Rapporteur on torture had confirmed that torture and other forms of ill-treatment remained widespread, particularly in pre-trial detention and during interrogations carried out without the presence of a lawyer.  The right to have immediate access to a lawyer had to be implemented in practice.  The 72-hour period before bringing a detainee to a judge was not in line with the Covenant.  Physical appearance before a judge was intended to offer the detainee an opportunity to complain about instances of ill-treatment.

The European Court of Human Rights had recognized an increasing number of cases in which the lack of safeguards against illegal extradition resulted in persons being extradited or forcibly returned to Tajikistan, and subsequently subjected to torture.  Why hadn’t the State investigated these allegations? 

Another Expert inquired about the policy to ensure equal rights and opportunities for men and women during the period 2001-2010.  Tajikistan’s response listed a number of legal provisions regarding equality between men and women, but this was not just a question of legal norms.  Women were increasingly represented in legislative and executive bodies and a programme designed to support women entrepreneurs constituted a significant effort to improve gender equality.  Were there difficulties in the implementation of the law on equal opportunities and what was the State doing to improve its implementation?  What were the concrete results of this law? Experts also inquired about school attendance and drop-out rates for girls in rural areas.  Drop-out rates in rural areas were attributed to cultural traditions, what were the Government’s plans and timeframe to address this situation?

Experts also inquired about violence against women and the penalties imposed on perpetrators.  What resources had been allocated to the implementation of the law on the prevention of domestic violence?  Crises centres existed, but were they adequately funded?  Were women victims of violence able to find shelter in those centres? 

Tuberculosis was one of the first causes of death for individuals in custody, what measures were being taken in this regard?  Deaths resulting from violence and ill-treatment while in custody were also a matter of concern, as well as the lack of convictions.  Reports and well-founded allegations of death in custody had been received, what measures had been taken or had been planned to remedy this situation?  Could the delegation provide information about civilians killed during security operations?  Had an independent investigation been carried out?  Did the Ombudsman publish public reports on the human rights situation in the country?  Was a non-disclosure policy in place regarding statistics on the number of people detained? 

Response by the Delegation

The delegation said that human rights were of particular concern for Tajikistan and that the Government’s legislative activities aimed at implementing Constitutional provisions for the protection of human rights.  International instruments ratified by Tajikistan were part of the domestic legislation.  Training was provided to judges to ensure that they were aware of the State’s obligations under international law and all courts had to refer to the Constitution and relevant international conventions. 

In principle, the decision to ratify the Second Optional Protocol and to abolish the death penalty had been taken.  The Office of the Ombudsman had met with civil society organisations concerning the abolition of death penalty, and views had been exchanged about the willingness of the general public to accept the abolition.  The authorities were ready to take measures to accede to the Protocol and, while a referendum still needed to be carried out, a moratorium had been in place for several years. 

Regarding the prison system, penitentiaries in Tajikistan had been built during the Soviet era and the conditions for convicts were not up to international standards yet.  Some new facilities had been built in order to improve detention conditions.  A rehabilitation centre for drug users had been built with financial support from the United Nations Development Programme.  Convicts had direct access to prosecutors through complaints boxes and vocational training was provided to civil servants. 

The Office of the Ombudsman had been set up in 2009 and the first steps to develop the institution had been adopted and implemented.  Staff members were selected on the basis of a competitive examination and the Office relied on several sources of funding, including bilateral donors. 

Concerning gender issues, the representation of women in public services was low, and a programme had been developed in cooperation with the Organization for Security and Co-operation in Europe order to improve women’s representation in public administration. 

The establishment of a National Preventive Mechanism in accordance with the Optional Protocol to the Convention against torture was under consideration and the Ombudsman would be able to present its own report to the Committee in the future. 

Legislation on women’s rights had been adopted, such as the Presidential decree on the improvement of women’s participation in public administration.  Leadership courses were provided to women across the country and training courses were provided to civil servants.  Training for girls and women was of paramount importance and quality education was provided to girls to empower them.  In 1997, a Presidential decree had introduced a quota for girls from rural and isolated regions in higher education institutions and hundreds of modern schools had been created.  In rural areas, religious leaders remained a source of authority and were therefore instrumental to ensure that girls received education.  An increase in the number of people completing school had been recorded during the last years.  Drop-out rates were decreasing thanks to measures taken by the authorities and civil society organisations.  Training on the importance of education was provided to teachers, parents and children in rural regions.  The Government’s objective was to ensure that all children completed their school education. 

Crises centres offered shelter to girls and women victims of violence.  Unfortunately, they were all located in big cities.  In those shelters, women were provided with free legal aid and psychological support, and assistance for finding jobs.  A large number of people that came to crises centres were looked for legal advice and psychological services.  A report on the implementation of the law on gender equality, which allowed women to be appointed to senior positions in the public administration, had been submitted to the Government. 

Special hearings were organized to ensure that citizens could express their concerns to Government officials.  Citizens were received every Saturday in all ministries and agencies, including law enforcement agencies.  Tajikistan attached particular attention to the issue of extradition and its legislation provided for an extradition procedure.  It was inadmissible to extradite persons when there were serious grounds to think that they would be subjected to ill-treatment.  Guarantees had to be provided by the country of destination and the delegation described several specific cases of extradition of interest to the Committee. 

Regarding the security operation carried out in Khorog, launched after an investigative team was held hostage by an armed group in the summer of 2012, it had been alleged that more than 100 people died during the operation, but the casualty figure was closer to 20.  The circumstances were presently under investigation and appropriate legal actions would be taken.  Between July and December 2012, many heavy weapons and small arms had been confiscated from members of this criminal group. 

Concerning allegations of ill-treatment of members of terrorist groups, no act of torture had been recorded during the reporting period.  Law enforcement officers had to inform people in their custody about their rights, including the right to contact a lawyer.  Investigators were required to report persons in detention within three hours of an arrest, clearly indicating the actual time of detention.  Inspections were carried out in detention facilities and allegations of torture were investigated.  As a consequence, three illegally-detained people had been released and seven officials had been prosecuted for misbehaviour.

The law on domestic violence aimed at developing a mechanism and implementing economic and social norms to combat domestic violence.  Physical violence against children constituted a criminal offense.  The Criminal Code recognised crimes committed against a pregnant woman or another helpless person, or against an individual dependent on the perpetrator, as aggravating circumstances.  The law laid out the rights of victims of violence and preventive measures.  Civil servants were trained regarding domestic and gender-based violence, and they cooperated closely with the chairperson of the Council of women affairs.  Information about domestic violence was disseminated through various media and preventive work at the local level was constantly carried out.  A plan for the implementation of recommendations received during the Universal Periodic Review included measures to combat domestic violence. 

Questions by the Experts

Experts asked if prosecutions in cases of domestic violence were carried out ex officio or if they depended on a formal complaint from the victim.  An independent investigation into the 21 deaths resulting from the operation against an armed group in Khorog should be carried out.  Experts also inquired about allegations of ill-treatment against children in police custody.  Regarding the principle of non-refoulement, it was noted that serious problems hindered access to the asylum procedure, such as the rejection of applications from people who had illegally crossed the border.  The Covenant, as well as the 1951 Refugee Convention, requested that individuals should not be returned to their country if they were at risk of being tortured.  The 24-hour delay before deportation was exceedingly short in practice.  To what extent would a new law on refugees address these issues?  Were restrictions to the freedom of movement imposed on refugees in line with the provisions of the Covenant?  Many refugees could not register newborns and this lead to problems such as statelessness.

The independence of the judiciary had to be strengthened, notably by increasing the budget of the Ministry of Justice and judges’ salaries.  How was free legal aid provided in practice?  Some problems with lawyers were reported and the legal profession was not well organised.  Experts called on the Government not to hinder the independence of lawyers.  Even though much progress had been made, communications received regarding Tajikistan contained allegations of the violation of article 14 of the Covenant regarding the right to a fair trial.

Another Expert asked if the Government intended to explicitly forbid corporal punishment.  What was the participation of ethnic groups in political bodies?  Why had a former Minister of Economy been arrested in the context of his registration to the presidential election?  The Committee received allegations claiming that excessive administrative measures were used by the authorities to shut down civil society organisations.  Did the Government intend to change administrative procedures related to NGOs registration?  The law on NGOs allowed the Government to send representatives to NGOs meetings, which could hinder freedom of expression. 

Concerning the return of individuals to places where they feared mistreatment, written guarantees from countries of destination were not enough to comply with the requirements of the Covenant.  Criminal military jurisdiction had to be strictly limited to cases where all parties were members of the armed forces, and it was not acceptable to bring before a military court cases involving a civilian and a soldier.  How did Tajikistan justify limitations to civilians’ right to a fair trial?

Experts inquired about articles added to the Administrative Code in June 2012, in relation to the Act on freedom of conscience, which imposed fines for religious education abroad without State approval.  How did these articles comply with article 18 of the Covenant?  These restrictions were justified on the grounds that Tajikistan was a secular State and the desire to avoid the spread of religious radicalism.  Had these measures managed to curb religious extremism in Tajikistan?  Could the delegation specify the way in which these restrictions were in line with the Covenant?  The Special Rapporteur on freedom of religion had referred to attacks against minorities’ places of worship and to the fact that hijabs were forbidden in educational establishments.  What was Tajikistan doing to protect these places of worship and to ensure freedom of religion?  What was the Government doing to avoid the forced recruitment of young men under the age of 18 and to ensure the implementation of the Committee’s previous concluding observations regarding the lack of recognition of conscientious objection to compulsory military service?

Another Expert inquired about attempts to restrict the right to freedom of expression of journalists, lawyers and human rights activists.  It appeared that access to several news websites and social networks had been blocked and that a group of observers would be formed to monitor online publications and websites for insulting or libellous content, and in 2012 several prosecutions were carried out against various media.  The Expert requested information about lawsuits brought against journalists and inquired about the draft law on media that the Parliament was considering, aimed at ensuring that media provided objective information.  How would this draft law regulate the ownership and licensing of press and broadcasting?  On what basis could media licenses be granted or refused, and what controls could be imposed by public authorities on journalists’ activities? 
 
What restrictions applied to the establishment and activities of political parties, trade unions and associations?  What penalties were imposed on members of prohibited organizations and under what conditions could voluntary associations be dissolved. Experts asked for information about the number of public associations dissolved by court decisions during the reporting period and the grounds for their suspension.

It was noted that Constitutional provisions concerning fair trial were not always respected, in particular through restrictions on defendants’ access to lawyers, and that politically motivated prosecutions sometimes occurred.  Judges should be independent from the executive and their status had to be clearly defined by law.    What influence did the executive have in the selection and appointment of judges?  Reports had been received about the influence of prosecutorial authorities on judicial decisions, what steps had been taken to address these concerns?
Response by the Delegation

The bill creating the commission of qualification of judges established that it should be mainly composed of lawyers and judges.  The idea was to create a Bar Association that would eventually take up the coordination of lawyers’ associations.  Private lawyers had to apply for licenses, which were limited to 500, and lawyers were interested in the consolidation of organisational mechanisms to ensure that lawyers were granted licenses.  The draft law was currently under discussion with representatives from lawyers and various ministries. 

Corporal punishment was explicitly prohibited by the law and the juvenile justice programme provided assistance to victims. 

The current legislation contained provisions for the registration of public associations, which had to provide an address, including the home address of their leaders, to register.  In case of changes in their addresses the registration also had to be changed, and the situation would be further analysed to assess administrative difficulties.  The Ministry of Justice could not verify all public associations and some associations did not timely report their addresses and were therefore shut down.  Racist and extremist associations were strictly prohibited.  Some public associations had been disbanded following courts’ decisions.  According to the law, the Ministry of Justice could monitor the activities and the charter of associations.

The law on public assembly required that a notification, including time and place, was submitted a month in advance of any public meeting.  This was designed to allow local authorities to ensure security and public order, and organisers of public meetings were responsible for security during the event.

Defamation had been removed from the Criminal Code and included in the Civil Code.  Some NGOs had asked for the removal of provisions regarding insults and offences against State authorities contained in the Criminal Code, but this issue had to be addressed in detail and in relation to provisions related to defamation, offences and insults.  Some journalists had been prosecuted for the publication of offensive articles and a new law on mass media would replace the current law, which dated back to the Soviet era.  Mass media were not registered by public authorities, only political parties and NGOs were registered.  Regarding the right of State officials to participate in NGOs meetings, the delegation noted that only large scale events were concerned.

The birth registration of refugees’ children was carried out in accordance with international standards.  Laws did not limit the registration of newborns; however, a fee under 2 dollars had to be paid.

The Constitution enshrined the independence of the judiciary and interferences in courts’ activities were prohibited.  A judicial reform was envisaged to streamline the training and the qualification process, and to strengthen the independence of courts.  Legislation adopted in 2001 regulated the relationship among the Supreme Court and district and regional courts.  Changes had been made to Constitution to provide judges with training courses once every two years.  In order to strengthen the independence of the judiciary, judges were now appointed for a period of ten years and appointments for life were also envisaged.  As part of legal and administrative reforms, legislation enhancing the role of courts in society and improving the material situation of judges was under consideration.  Officials were trained to detect cases of corruption and programmes were carried out to ensure that the judges’ decisions were in line with the relevant legislation.  Judges had improved the quality of their rulings, as shown by a decrease in the rate of overturned decisions.  Particular attention was given to the continuation of judicial reform.  Upcoming reforms aimed at enhancing the effectiveness of courts’ decisions.  Criminal cases were only considered by military courts when a military had committed a crime.  Regarding the application of the Criminal Code concerning the obtention of evidence by illegal means, including torture; it was noted that all cases of torture were carefully assessed by the courts, and court decisions made on the basis of illegally-obtained evidence were considered void.

Legislation regulated religious associations in the interest of believers and their associations, Tajikistan did not infringe upon their rights.  The procedure for the registration of religious associations was clearly laid out in the law and in most cases the religious representatives made sure that legal requirements were met.  Religious minorities had the right to establish religious associations for worship but the active participation of children in the activities of religious associations was prohibited for all religion or belief.  Children needed protection against various types of propaganda and therefore were not allowed to participate in such activities.  This was not a restriction of their right to belief but a necessary measure of protection.  Individuals were free to wear religious clothing; however, some schools had established dress-codes on the basis of agreements with the parents.  The Ministry of Education published recommendations regarding clothing at schools, which did not address the issue of hijabs.  Islamic secondary schools and universities existed, as well as religious free schools, but public schools were secular. 

The Committee on religious affairs was responsible for compliance with legislation on freedom of conscience and religious associations, and had the power to impose fines in line with national and international legal obligations.  Restrictions provided by the law, such as the prohibition on religious studies abroad, were necessary to protect national security, public order, and the fundamental rights of others. 
                        
The law on refugees laid down provisions placing refugees in Tajikistan under the protection of the State.  Asylum-seekers or refugees detained by security agencies had to be handed over to the Ministry of Interior within 72 hours, which collected documentation in order to determine if the person was a refugee or asylum-seeker. 

Concluding Remarks

RUSTAM MENGELIEV, Minister of Justice of Tajikistan, thanked the Committee for the opportunity to discuss the challenges faced by Tajikistan and for the constructive dialogue, which would promote the upholding of its international obligations. Tajikistan would continue to engage in a constructive dialogue with the Office of the High Commissioner for Human Rights, the Human Rights Council and United Nations treaty-bodies. 

NIGEL RODLEY, Chairperson of the Committee, said that the Committee was aware that Tajikistan was still a society in transition.  Less than a quarter of a century had elapsed since Tajikistan emerged as an independent State.  Mr. Rodley noted with appreciation the confirmation that a moratorium on death penalty was in place and said that there was always a discrepancy between law by the book and law in action. The safeguards related to the rights of persons deprived of liberty had to be upheld.  He hoped that the National Human Rights Institution would soon obtain an “A status”.
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