“Monitoring of the Impact of the New Criminal Procedure Code of Tajikistan on the Human Rights Situation in the Criminal Justice Process”

Public Foundation “Nota Bene”

Project goal:  1. To achieve harmonization of the legislation of the Republic of Tajikistan in the sphere of criminal justice. 2. Monitoring of the impact of the CPC on the human rights situation in the criminal justice process. 3. To improve knowledge and skills of the representatives of the legal profession on the international standards in the sphere of criminal justice.

Activities:

1. Analysis of the national legislation in the sphere of criminal justice on compliance with the international standards on the right to freedom from torture, right to liberty and security in person, as well as the right to fair court trial.

1. Development of the handbook (brochure) on the right to fair court trial.

3. Monitoring of the impact of the new CPC on the observation of human rights in the criminal justice process.

Project strategy: Project is based on the cooperation strategy with different civil society institutes that allows avoiding duplication of the activities, as well as the better coverage of the issues related to legislative drafting and laws implementation practice in the sphere of criminal justice.

ANALYSIS OF THE NATIONAL LEGISLATION COMPLIANCE WITH THE INTERNATIONAL STANDARDS OF CRIMINAL JUSTICE.

Upon adoption of the new CPR and legislative reform in the criminal justice sphere, the representatives of the international and national organizations conducted the analysis of the national legislation. Thus, the American Bar Association (ABA/ROLI) conducted 9 round tables in Dushanbe city with more than 120 participants: judges, lawyers, prosecutor officers and police officers.  These round tables were dedicated to the analysis of CPC and development of the recommendation for the improvement of this law. American Bar Association prepared package of recommendations to the legislation of Tajikistan “Problems of application of the CPC of Tajikistan and practical recommendations” that was publicly discussed at the conference “Harmonization and development of the Criminal Procedural legislation of the Republic of Tajikistan”, which took place in Dushanbe from February 29 to March 01, 2012.

During the project implementation there was carried out the analysis of the national legislation in three main areas:

- right to the freedom from torture and cruel, inhuman and degrading treatment;

- right to liberty and security of person;

- right to fair court trial.

In the result of the analysis there were developed relevant recommendations (you may see full text of the analysis and the recommendations on the website of the organization www.notabene.tj). For the time being, an advocacy strategy is under the elaboration on the promotion of the recommendations for the improvement of the legislation of Tajikistan:

- recommendations package will be provided to the relevant working groups in the Government and the Parliament of the country;

- together with the members of the NGO Coalition against torture in Tajikistan there were developed the recommendations to the draft law on changes and amendments to the Criminal Code of Tajikistan, which envisage the definition of “torture” and submitted to the Government and the Parliament of the country (full text you may find on the website of our organization www.notabene.tj);

- As the result of the received recommendations together with the lawyers of the Public Association “Independent center for human rights” there were prepared constitutional appeals on incompliance of the norms of the national legislation in the sphere of criminal justice to the Constitution of Tajikistan and the international standards on Human Rights.

- the recommendations will be also included into NGO reports on the implementation of the International Covenant on Civil and Political Rights and Convention against torture by Tajikistan.

Development of the HANDBOOK (brochure) on the right to fair court trial.

Within the project the handbook was developed on the use of the international instruments on the right to fair court trial (information for the practicing lawyers). The Handbook contains 4 chapters: pre-trial rights, court trial, after court trial rights and practice of the UN Committee on Human Rights on the individual communications in accordance with the Optional Protocol to ICCPR with regards to the Republic of Tajikistan. The first three chapters contain the international standards in the sphere of fair court trial and national legislation of Tajikistan.

Monitoring of the impact of the new CPC on the observation of THE human rights in the criminal justice process.

- the monitoring was conducted from June to November 2011. The key objective of the monitoring is to get quality information about the impact of the new CPC on the observation of the human rights during the detention, investigation and court trial. The following issues were studied: a) reforms conducted after the adoption of the new CPC; b) access of the lawyers (judges, prosecutors, defense lawyers) to the text of CPC and new laws; c) educational training on introduction of the new standards of criminal justice; d) whenever the actual level of information amongst the legal professionals (judges, prosecutors, defense lawyers) enable the application of the new norms in practice; e) difficulties and challenges experienced by the legal professionals while applying new CPC in the practical work.

The interviews with the representatives of legal professions (judges, prosecutors, defense lawyers, lawyers of human rights protection organizations) were conducted in order to received necessary information, as well as the meetings with the international organizations providing assistance to the country on the criminal justice reforms.

In total there were interviewed around 234 people: in Dushanbe – 90 people; in Sugd oblast – 38 people, in GBAO – 74 and in Khatlon oblast – 27 respondents. Interviews were conducted amongst the direct participants of the criminal process: the representatives of the prosecutor’s office, police officers, judges, defense lawyers and human rights defenders. The applications were also disseminated to the representatives of the target professions during the trainings on the use of the CPC norms organized by the American Bar Association. 

Impact of the new CPC on the observation of human rights in the criminal justice process in the Republic of Tajikistan.

In General the new Criminal Procedure Code is in compliance with the international standards in the criminal justice sphere. There are many positive changes introduced in the document such as the court sanctioning, access to legal protection from the actual arrest, introduction of the private and private-public prosecution and accusation, etc. For the first time the objectives of the criminal justice process were formulated/declared as the protection of the human and citizens rights and freedoms Criminal justice is based on the Rule of law, respect to the human and citizens rights and freedoms, guaranteed protection from unjustified accusation, illegal deprivation of rights and freedoms, as well as immediate rehabilitation in case of accusation and conviction of the innocent person. New Code is providing the mechanisms for the court consideration of the legitimacy and justification of the needs of detention. There is a new article envisaging respect to the human honor and dignity.

However along with the positive norms, new CPC also has several shortages and contradictions that require certain regulation. One of the general shortages of the CPC of Tajikistan is the referrals to many articles with very general formulations, such as “as in the cases envisaged by law” without indication of the concrete legislative norms. At the same time the adoption of the new CPC requires changes and amendments to other legal acts of the country that regulate similar issues of criminal justice process.

«…criminal procedure law still contains some weak points that is necessary to be regulated by the future amendments. One of the week points of new CPC is the provisions that are not fully in compliance with the international standards on fair court trial. Particularly such provision is the prohibition to appeal on the restrain measure at the stage of court trial, as well as the norm that allows choosing the pre-trial detention as the restrain measure only based on the gravity of the incriminated offense. Besides the experts pointed that in accordance with the new CPC the mortgage can be applied only in the case when the accused person is fully reimbursed the damage caused by the incriminated offense. This norm significantly reduces the possibility of using mortgage and is not compliant with the principle of presumption of innocence. … it is necessary to refuse from the authority of courts to open criminal cases based on their own initiative and necessary to reduce the power of accusatory side in the cassation process (refuse from using “prosecutor’s opinion” that in practice allows the prosecutors speaking on the question twice)»[1].

With adoption of the new CPC there were introduced changes and amendments to the relevant legal normative acts and the new laws are drafted. During the time from the adoption of CPC, three times there were made different amendments and changes of technical and contextual nature (amendments and changes dated July 21, 2010 № 618, March 25, 2011 № 692  and August 2, 2011, № 755). In accordance with the requirements of the CPC of Tajikistan there were adopted the new laws: Law of Tajikistan “On the procedure and conditions of detention of the suspected, accused persons and person on trial” (June 28, 2011. № 720), Law of Tajikistan “On state protection of the participants of the criminal justice process” (December 29, 2010. № 644) and the Law of Tajikistan “On the special investigation activities” (March 25, 2011. № 687), as well there were introduced changes and amendments to the legislation on courts, prosecutor bodies and police.

Participation in development/discussion of the new draft of CPC and the draft laws in the sphere of criminal justice.

The results of the research showed that the majority of the respondents did not have any access to the development or discussion of the new draft Criminal Procedure Code. The draft law was discussed amongst the judges, prosecutors and law-enforcement but only 15% of the interviewed respondents have participated in the discussion of the last draft of CPC and due to limited time given were not able to conduct proper analysis of the draft law on it’s compliance with the international norms. Nevertheless more than 60% of the respondents agreed that the current CPC is quite progressive and corresponds with the norms of international law.

The more complicated situation is with the access of the legal professionals and civil society representatives to the discussion of the draft laws in the criminal justice sphere. Around 90% of the respondents did not have access to the discussion of the draft laws related to the sphere of their work at the stage of legal drafting or adoption. Lack of access to the discussions of the draft laws amongst the specialists and other representatives on interested professions in fact leads to the situation when the laws are not working in practice and the Government has to introduce regular amendments to the laws in order to make them effective in practice.   

Knowledge about new legal normative documents adopted in the sphere of criminal justice during the adoption of the new Criminal Procedure Code.

From the time of the adoption of the new Criminal procedure code, the Republic of Tajikistan adopted several laws and introduced the changes into the present legislation in order to bring it in compliance with the norms of the new CPC.  The Decree of the President of Tajikistan, dated January 3, 2011 approved new program of judicial-legal reform in the Republic of Tajikistan for the period from 2011 to 2013 in order to further  strengthen the judicial power, increase the role of the courts in protection of the human rights and freedoms.

As the monitoring results showed around 63% of the respondents are informed about changes in the legislative sphere upon the adoption of the Criminal Procedure Code. Nevertheless there is concern that some respondents directly involved in the criminal process do not have information about new laws and legislative acts in the sphere of criminal justice (37%). Lack of knowledge of the new laws and legal acts might be the reason why some judges and the prosecutors still use the old provisions of the previous CPC in practice and thus violating not only the rights of other participants of the criminal justice process but also the legislation of Tajikistan in general.  

Adopted new laws in the sphere of criminal justice are not always used by the representatives of judicial, investigation and right protection structures. Mostly our respondents have referred to the Laws of Tajikistan “On changes and amendments to the Criminal Procedure Code of Tajikistan”, dated 25.03.2011 and 02.08.2011, while the other laws were rarely used. 

Availability of new CPC text and other laws on criminal justice.

Around 20% of the respondents did not have CPC text that created serious difficulties in their professional activities. Out of 7 judges of Kurgan-tube city, only one judge had the new text of CPC. Some respondents (10%) use the electronic version of the new CPC.  

Participation in the specialized trainings on the application of the new Criminal Procedure Code.

From the time of the adoption of the Criminal Procedure Code there were conducted several educational events focused on the introduction with the norms of the new CPC. Despite this fact around 45% of the respondents did not pass any training on the application of new CPC. Less than half of the interviewed judges (46%) and half of the interviewed prosecutor’s officers (50%) did not have the opportunity to improve their knowledge about new CPC.

Changes in work of the lawyers after adoption of the new Criminal Procedure Code.

Majority of the interviewed respondents (65%) agreed that the adoption of the new CPC changed the specifics of their work. Some changes such as the transfer of the arrest warrant process from the prosecutor’s office to the courts was met with a mixed response. The representatives of the investigation bodies of the Ministry of Internal Affairs of Tajikistan complained about time-consuming process of obtaining the sanctions. Around 60% of the respondents from the investigation bodies of the Ministry of Internal Affairs expressed their opinion about “increased paper bureaucracy”. The representatives of the prosecutor’s offices and the investigation bodies complained about time-consuming an difficult process of selection of the detention restrain measures, that is according to their opinion creating barrier for the prompt collection and verification of the evidences.

In general the respondents agreed that one of the main achievements of the new Code is the provision of the conditions for the real competition and equality of sides in the court trial. The judges noted the extended frames for participation of the court in the criminal process. For example, in accordance with the new law, the courts are not serving the purpose of criminal prosecution and thus shall remain objective and unbiased, providing equal and necessary conditions for the parties to realize their rights to comprehensive analysis of the case materials/content.

In the  opinion of the majority of the defense lawyers and the representatives of the human rights protection organization, they are more often invited to the pre-trial investigation and there are more application from people and it is easier to work with the representatives of the criminal investigation and prosecution bodies.

Main difficulties in implementation of the new Criminal Procedure Code.

а) decision making on restrain measures such as the arrest/detention.

According to the information from the Council of justice of Tajikistan during 2011 the courts issued 6 thousand 167 arrest warrants, search warrants and sanctions for other investigation activities (in 2010 the courts issues 3 thousand 677 warrants)[2]. In accordance with the provided information there were issued 3 thousand 878 arrest warrants and in only 129 cases the arrest warrant was denied by court that is slightly more than 3% of all court decisions on restrain measures related to deprivation of liberty.

The results of the monitoring of criminal cases and particularly the issuing of arrest warrants showed that: “despite the fact that the CPC envisages new restrain measures and the article 102 requires the judges while deciding on the restrain measures to consider all circumstances of the case, the detention measure still is the most widely applied in Tajikistan. Court monitoring of arrest warrant cases showed that the judges satisfied the appeals of the investigation bodies on detention measures with regards to arrested people (in 13 cases out of 14). The judges often even do not try to verify the facts in the case, as it is stipulated by law and if they do so, they do it in a very brief format. The most spread argument behind the court decisions – is the gravity of the offences that is contradicting the international standards of the right to liberty and security in person”[3]. The problem of issuing court arrest warrant primarily based on the gravity of the incriminated offense was also mentioned by the judges-respondents.

Most of the interviewed judges, lawyers and human rights activists (92%) stated that the transfer of arrest warrant to judiciary was one of the important steps in the judicial legal reform in the country on the way of building democratic society. Nevertheless many judges mentioned that application of arrest warrants creates certain problems and sometimes even disputes with the representatives of the prosecution bodies.  According the judges’ opinions the prosecutors are not used to the current division of tasks and still trying to pressure on the court decision. The judges also mentioned that they can not independently choose another restrain measure except for arrest (14%), as in accordance with the norms of the new CPC the courts may only issue the arrest warrant or just refuse from issuing the arrest warrant. 

Another problem, stressed by the judges is that the criminal investigation bodies may change or annul the decision of judge or court decision on the restrain measure in case of mitigating circumstances. In practice the investigation bodies in order to have the detention sanction artificially initiate criminal cases incriminating heavy and especially grave articles of the Criminal Code and later one change them into the lighter ones (16%).

In accordance with the part 3 of the article 111 of CPC, the arrest warrant is considered by the judge acting alone within 8 hours from the moment of the registration of the case materials in court. However untimely or incomplete submission of the documents by the investigation is another problem that according to the judges hampers timely case consideration and negatively affect the courts activities.  The judges also mentioned that the investigation bodies often justify their arguments with gravity of offence without any evidences of the necessity of detention sanction.   

According to representatives of the investigation bodies of the Ministry of Internal Affairs and prosecutors, the adoption of the new Criminal Procedure Code has affected the efficiency of these bodies. The major difficulty noted during the interviews is the procedure of obtaining detention sanction (arrest warrant) (28%). According to opinion of the representatives of the prosecutor office, the judges often create obstacles to "demonstrate their power over the investigation bodies." Investigators have complained that the judges often require copies of all documents in a criminal case, which is time consuming and take a lot of efforts. Some representatives of the investigation bodies of the Ministry of Internal Affairs favored the return of the arrest warrant to the competence of the prosecutor’s office. 

In addition, approximately 32% of the respondents from the Ministry of Internal Affairs and the Prosecutor's Office mentioned that the procedures of detention of the suspected person became complicated that is affecting the timely determination of the facts in the case.  Some respondents even noted that the adoption of the new CPC complicated the registration of the documents on arrest sanction, as it requires more time for the preparation of the documents on restrain measure that affects the case investigation process. It was also mentioned that in current situation it is almost impossible to collect evidences for detention of the suspects within 72 hours (21%). Investigators have argued that it is necessary to increase the pre-trial detention in order to improve the quality of the investigation.

According to representatives of the Ministry of Interior, innovations in the Criminal Procedure Code, which provide for the transfer of certain functions from the investigation to the courts, create difficulties in practice. For example, the article 354 of the CPC of Tajikistan envisages that the cases of private prosecution are initiated by a victim or his/her legal representative through the filing of a statement to the court on criminal prosecution of a person. In accordance with the part 5 of the abovementioned article from the time of the registration of the statement in court, the person becomes a private prosecutor and his/her rights shall be explained to him/her in accordance with the article 43 of the CPC.  However in practice the population is not aware about new issues in the procedural legislation and continues applying to the investigation bodies, where such applications are registered privately and submitted to the courts. As noted by the representatives of the Ministry of Internal Affairs, the judges do not accept the relevant collected materials and send them back, explaining that people have to directly apply to courts in accordance with the new requirements of the Criminal Procedure Code.

Another important problem of the prosecutor investigation bodies is provision of the suspected person with sufficient legal protection during the pre-trial investigation. 

The representatives of the investigation bodies in the Ministry of Internal Affairs and the prosecutor offices noted that in accordance with the norms of the new CPC the rights of the participants of the criminal process have increased and particularly the rights of the defense lawyers, detained persons, suspected and persons in trial that is not always positively impact on the criminal investigation process (7%) 

International acts and current legislation of Tajikistan guarantee the right to legal protection for everyone at all stages of investigation and court processes. According to the opinion of the lawyers, despite the positive innovations in the criminal procedure law, there are almost no changes in practice. In accordance with the new CPC the rights of the defense side and the rights of the arrested people, suspects and people in trial have increased. These measures have been taken in order to guarantee the principle of criminal court competition. Majority of interviewed lawyers and the representative of human rights organizations mentioned satisfactory increase of the rights and authorities of the defense side in the criminal process. It was also mentioned that the investigators of the Ministry of Internal Affairs and the judges started to invite more often the defense lawyers during the investigation and criminal court trial processes.

Nevertheless, the lawyers and human rights activists still think that the judges take the accusatory position, i.e. take an initiative in interrogation of the accused person, witnesses and victims that is violating the competitive principle of the court process. As it was mentioned by the 43% of the respondents-lawyers, the courts favor the appeals of the investigation and prosecution bodies while considering the restrain measures.

The lawyers also mentioned that they do not always have enough time to get acquainted with the case materials submitted by the investigation to the court and they had to appeal from additional time to read the case materials. Information about time of consideration of the appeals is always late that creates additional difficulties for the defense lawyers in timely collection of the necessary documents. The lawyers also mentioned that often they are not able to copy documents after submission of the case to the court.

Around 27% of the defense lawyers mentioned that they experienced difficulties in visiting the clients before the court trial. The lawyers often do not have opportunity to stay alone with their clients.

Some representatives of defense side mentioned that in accordance with the new CPC, the defense representation in court may be carried out by the defense lawyer or a person with legally obtained license to practice legal representation in court. This creates certain problems as in some remote areas (for example in Murgab region), the suspects are not able to access the defense lawyer from the moment of arrest and during the investigation and court trial due to actual lack of the qualified lawyers. At the same time, some lawyers mentioned that the procedure of court consideration of the arrest warrants contradicts with the requirements of fair criminal justice. For example, the article 279 of the CPC of Tajikistan does not envisage the obligatory participation of the lawyers during the decision on the restrain measures, discussion of the opportunity to prolong the arrest terms and change or abolition of the restrain measure, while at the same time the participation of the prosecutor officers is obligatory. According to the opinion of the defense side such approach is violating the principle of competition and equality of the parties in the court process and creates imbalance in favor of the accusatory side.

б) consideration of the criminal case in court.

One of the main and important principles of the criminal procedural legislation of Tajikistan is the competitiveness and equality of the parties in the justice process. In accordance with this principle the defense and accusatory parties are equal in the criminal process and have equal opportunities for protection of their positions.

Monitoring results showed that more than half of the respondents did not meet the difficulties in consideration of the criminal cases in court (52%). At the same time, the lawyers consider that the judges continue to consider the cases from the accusatory point of view; they ignore the statements about torture and do not issue non-guilty verdicts. According to the opinion of the defense lawyers there is a required amendment into the new CPC on the procedures of court consideration of the appeals on selection of the detention restrain measure, truly competitive court processes and actual equality of the parties in courts. As it was mentioned the new CPC requires participation of the prosecutor in the court trials, except for the private accusation (article 279, part 1), at the same time the participation of the defense lawyer is obligatory only in 5 cases (article 51, part 1).

According to the opinions of the representatives of judiciary, the prosecutors have the function of supervision over the court activities and legitimacy of the court decision that is considered as direct intervention into the work of judiciary.

As it was mentioned by the representatives of the Interior Affairs, the new CPC preserve the institute of returning the criminal case for re-investigation, thus the judges very often return the case for additional investigation and create additional workload for the investigation bodies. It was also mention that the court’s secretarial offices refuse to accept criminal cases unless such is decided by the judge. Furthermore, the courts shall not be on the accusatory side but rather be the independent “arbiters”, however the copy of the accusatory statement is issued to the person in trial by court and not by the state prosecutor.

RECOMENDATIONS

• To conduct educational programs in order to improve the qualification of the representatives of legal professions on the new legal provisions and legal implementation practices in the sphere of criminal justice;

• To bring the legislation of Tajikistan in the sphere of criminal justice, including the CPC in compliance with the international standards:

-       to eliminate gaps in the right to liberty and security in person, including the procedure of the court consideration on arrest warrants;

-       to eliminated the contradictions between the CPC norms and other laws regulating similar issues;

-       to exclude from the CPC the procedure of returning the case for re-investigation;

-       to ensure equality and competition of the parties in the court process;

-       to simplify some investigation activities in order to have timely and effective investigation of the criminal cases and observation of the rights of the suspects and accused in committing the offense;

Promptly provide the judges, the officers of the investigation bodies of the Ministry of Internal Affairs and the prosecutors with the texts of the legal normative acts in the sphere of criminal justice.