Monitoring at medical institutions of the Republic of Tajikistan

PO “Human Rights Center” has conducted monitoring at medical institutions of the Republic of Tajikistan to study the legislation and practice of efficient documentation of cases of torture and other cruel, inhuman or degrading treatment or punishment by medical workers. The document that acted as the departure point to evaluate the efficiency of documentation was Istanbul Protocol, or Manual on efficient investigation and documentation of torture and other cruel, inhuman or degrading treatment or punishment. As part of the monitoring, the researchers interviewed doctors and forensic experts in Dushanbe, Sughd and Khatlon Region and analyzed the national legislation. Monitoring results are presented in this report for discussion with the stakeholders and subsequent presentation to the Committee Against Torture as part of the alternative report.

1.       Goals and objectives of the monitoring

The goal of the monitoring was to contribute to the study of the situation with human rights, particularly regarding the right to freedom from torture and other cruel, inhuman or degrading treatment or punishment.

Monitoring had established the following objectives:

• Study the situation with documenting cases of torture and other cruel, inhuman or degrading treatment or punishment at medical institutions in RT;
• Identify typical violations of the international standards for documenting cases of torture and other cruel, inhuman or degrading treatment or punishment at  the medical institutions;
• Study the legislation of RT related to the standards of documenting cases of torture and other cruel, inhuman or degrading treatment or punishment by doctors and forensic experts;
• Prepare a report on the results of monitoring, which, in addition to the facts established, would include recommendations for improving the legislation and practice of documenting cases of torture and other cruel, inhuman or degrading treatment or punishment at medical institutions.

During the monitoring, particular attention was paid to identifying procedures and methods of documentation, and doctors registering reports of alleged torture victims on facts of battery.

2.       Methodology of monitoring

The monitoring methodology was designed by Human Rights Center with the help of experts from Helsinki Committee for Human rights, using the Manual for efficient investigation and documentation of torture and other cruel, inhuman or degrading treatment or punishment (Istanbul Protocol). The following methods were chosen to perform the monitoring:

• Analysis of the national legislation with a focus on studying provisions related to documenting facts of torture and other cruel, inhuman or degrading treatment or punishment by medical institutions and its comparison to the Istanbul Protocol requirements;
• Semi-structured interviews with doctors and forensic experts at medical institutions in the Republic of Tajikistan;
• Monitoring of medical institutions.

A questionnaire was designed to conduct semi-structured interviews, which consisted of the following parts:

1. People’s reports on traumas received as a result of battery and fights;
2. People’s reports on facts of battery by law enforcement officials;
3. People brought in by law enforcement officials to conduct medical examination.

A medical institution observation map was prepared to conduct the research.

Both monitoring instruments were discussed and approved by the representatives of the Human rights Ombudsman and experts at Helsinki Committee for human rights. Both have been tested in five towns (see below) and with some modification, used to perform the monitoring.

The national legislation prohibits torture and other cruel, inhuman or degrading treatment or punishment. This prohibition is a constitutional guarantee (Article 18 of  the Constitution of the Republic of Tajikistan), which is also prescribed in the Criminal Proceedings Code (CPC) of RT. In 2012, the Criminal Code (CC) was amended with a new article criminalizing torture (Article 143.1). in the same year, the Supreme Court of RT passed Plenary Decree #1 “On applying the norms of criminal and criminal proceedings legislation to combat torture”. Thus, Tajikistan is still in the process of reforming its legislation to strengthen the fight against torture. According to IP, reforms also need to be conducted concerning the documentation of torture facts. Therefore, this monitoring considers the national legislation regulating procedures and methods of documenting and registering alleged torture victims’ reports to medical institutions.

CPC stipulates performing several types of medical studies:

1. Medical certification (Article 186 of the CPC);
2. Corpse examination, exhumation (Article 184 of the CPC);
3. Expert examination (Article 24 of the CPC).

The Law of the Republic of Tajikistan “On the procedure and conditions of detention of suspects, accused and prisoners” also mentions medical examination when meeting a suspect, convict or detainee by medical officers at detention facilities, the procedure for which is set by internal code of conduct of the detention facilities[1]. These internal rules were not made available for the monitoring, therefore it is not clear what the objective and procedure of conducting medical examination of suspects, accused and defendants are, and whether these procedures allow identifying and documenting facts of torture and other cruel, inhuman or degrading treatment or punishment.

Medical certification

Certification is a procedure aimed at locating special marks on a person’s body, traces of a crime, injuries, identifying the state of inebriation or any other features and signs relevant to the case, if this does not require expert examination. A certification can be performed on a suspect, convict, victim or a witness. The procedure is performed on the basis of an investigation officer’s decision, in presence of two attesting witnesses and, if necessary, a doctor[2]. Thus, even though this action includes examination of a person’s body or identification of his/her condition, it can be conducted without a doctor, as the presence of the latter is not mandatory. Only if the investigation officer cannot conduct the medical certification of a person of the opposite sex, does the Criminal Proceedings Code stipulate that the medical certification be provided by a doctor, with attesting witnesses of the same sex as the person being examined. The CPC also does not state any rights of the person being examined. Besides, the law does not make it clear what the procedure of medical certification is, whether the doctor should ask any questions, and which ones. The certification procedure is particularly vague if the doctor is not involved. The Criminal Proceedings Code does not state what document is used to record results of the certification and what aspects are to be reflected there.

The Law “On police” states that police officers must ensure the detainees’ right for protection and other rights, and if necessary conduct medical certification, immediately notify their relatives and administration at the place of work or study, and within 24 hours – the public prosecution office, administer primary medical aid if necessary and eliminate danger threatening life, health or property that arose as a result of detention or taking into custody the aforementioned persons[3]. The procedure for performing forensic medical examination and providing primery medical help is not regulated by the law “On police” or by the CPC.

Corpse examination, exhumation

Exterior inspection of a body is performed at location by an investigation officer, together with attesting witnesses and a doctor, specialist in forensic medicine, and if the latter is not available, then any other doctor. Unidentified bodies must be photographed and fingerprinted. If a body needs to be removed from its burial place (exhumation) for examination, an investigation officer passes the respective decision. This decision on exhumation is binding on the administration of the burial place and relatives of the dead person. The body is exhumed and inspected in presence of attesting witnesses and a doctor, specialist in forensic medicine, and if the latter is not available, then any other doctor[4].

Expert examination

Expert examination is a procedure prescribed and administered according to Article 24 of the Criminal Proceedings Code of the Republic of Tajikistan. The examination is prescribed by an investigating official at their discretion, after issuing a respective decision[5]. At the same time, CPC lists the cases when prescribing and administering an expert examination on a case is mandatory. These are cases when the following needs to be clarified:

• Causes of death;
• Nature and degree of bodily injuries;
• Age of the suspect, convict or a victim, when this is important for the case and documents confirming the age are either missing or questionable;
• Mental or physical condition of the suspect, convict, when there is doubt about their mental capacity or ability to represent their rights and legal interests in criminal process is questionable;
• Mental or physical condition of a victim or a witness in case their ability to correctly perceive the circumstances relevant to the case and give testimony concerning these circumstances is questionable[6].

Besides, expert examination is mandatory for a suspect or convict, while it is optional for a witness or a victim, and they can refuse passing it[7].

An investigation officer must inform the suspect, convict, victim or witness to be subjected to expert examination about the respective decision and explain their rights to them. A protocol is prepared, signed by the investigation official and the person who has been about the decision. The subjects may not be introduced to the decision to perform expert examination and presented its results, if their mental condition makes this impossible[8].

The national legislation prohibits torture and other cruel, inhuman or degrading treatment or punishment. This prohibition is a constitutional guarantee (Article 18 of  the Constitution of the Republic of Tajikistan), which is also prescribed in the Criminal Proceedings Code (CPC) of RT. In 2012, the Criminal Code (CC) was amended with a new article criminalizing torture (Article 143.1). in the same year, the Supreme Court of RT passed Plenary Decree #1 “On applying the norms of criminal and criminal proceedings legislation to combat torture”. Thus, Tajikistan is still in the process of reforming its legislation to strengthen the fight against torture. According to IP, reforms also need to be conducted concerning the documentation of torture facts. Therefore, this monitoring considers the national legislation regulating procedures and methods of documenting and registering alleged torture victims’ reports to medical institutions.

CPC stipulates performing several types of medical studies:

1. Medical certification (Article 186 of the CPC);
2. Corpse examination, exhumation (Article 184 of the CPC);
3. Expert examination (Article 24 of the CPC).

The Law of the Republic of Tajikistan “On the procedure and conditions of detention of suspects, accused and prisoners” also mentions medical examination when meeting a suspect, convict or detainee by medical officers at detention facilities, the procedure for which is set by internal code of conduct of the detention facilities[9]. These internal rules were not made available for the monitoring, therefore it is not clear what the objective and procedure of conducting medical examination of suspects, accused and defendants are, and whether these procedures allow identifying and documenting facts of torture and other cruel, inhuman or degrading treatment or punishment.

Medical certification

Certification is a procedure aimed at locating special marks on a person’s body, traces of a crime, injuries, identifying the state of inebriation or any other features and signs relevant to the case, if this does not require expert examination. A certification can be performed on a suspect, convict, victim or a witness. The procedure is performed on the basis of an investigation officer’s decision, in presence of two attesting witnesses and, if necessary, a doctor[10]. Thus, even though this action includes examination of a person’s body or identification of his/her condition, it can be conducted without a doctor, as the presence of the latter is not mandatory. Only if the investigation officer cannot conduct the medical certification of a person of the opposite sex, does the Criminal Proceedings Code stipulate that the medical certification be provided by a doctor, with attesting witnesses of the same sex as the person being examined. The CPC also does not state any rights of the person being examined. Besides, the law does not make it clear what the procedure of medical certification is, whether the doctor should ask any questions, and which ones. The certification procedure is particularly vague if the doctor is not involved. The Criminal Proceedings Code does not state what document is used to record results of the certification and what aspects are to be reflected there.

The Law “On police” states that police officers must ensure the detainees’ right for protection and other rights, and if necessary conduct medical certification, immediately notify their relatives and administration at the place of work or study, and within 24 hours – the public prosecution office, administer primary medical aid if necessary and eliminate danger threatening life, health or property that arose as a result of detention or taking into custody the aforementioned persons[11]. The procedure for performing forensic medical examination and providing primery medical help is not regulated by the law “On police” or by the CPC.

Corpse examination, exhumation

Exterior inspection of a body is performed at location by an investigation officer, together with attesting witnesses and a doctor, specialist in forensic medicine, and if the latter is not available, then any other doctor. Unidentified bodies must be photographed and fingerprinted. If a body needs to be removed from its burial place (exhumation) for examination, an investigation officer passes the respective decision. This decision on exhumation is binding on the administration of the burial place and relatives of the dead person. The body is exhumed and inspected in presence of attesting witnesses and a doctor, specialist in forensic medicine, and if the latter is not available, then any other doctor[12].

Expert examination

Expert examination is a procedure prescribed and administered according to Article 24 of the Criminal Proceedings Code of the Republic of Tajikistan. The examination is prescribed by an investigating official at their discretion, after issuing a respective decision[13]. At the same time, CPC lists the cases when prescribing and administering an expert examination on a case is mandatory. These are cases when the following needs to be clarified:

• Causes of death;
• Nature and degree of bodily injuries;
• Age of the suspect, convict or a victim, when this is important for the case and documents confirming the age are either missing or questionable;
• Mental or physical condition of the suspect, convict, when there is doubt about their mental capacity or ability to represent their rights and legal interests in criminal process is questionable;
• Mental or physical condition of a victim or a witness in case their ability to correctly perceive the circumstances relevant to the case and give testimony concerning these circumstances is questionable[14].

Besides, expert examination is mandatory for a suspect or convict, while it is optional for a witness or a victim, and they can refuse passing it[15].

An investigation officer must inform the suspect, convict, victim or witness to be subjected to expert examination about the respective decision and explain their rights to them. A protocol is prepared, signed by the investigation official and the person who has been about the decision. The subjects may not be introduced to the decision to perform expert examination and presented its results, if their mental condition makes this impossible[16].

Delivery of detainees, accused, defendants or victims to medical institutions and calling medical staff

In addition to alleged torture victims, their relatives or ex-convicts contacting medical institutions, there is also a practice of law enforcement officials bringing detainees, convicts, defendants and victims to medical institutions. The monitoring results show that these persons are brought to medical institutions for the following purposes:

• Performing forensic medical examination;
• Medical certification;
• Providing medical support.

All respondents from forensic medical institutions noted that they regularly examine detainees, accused, defendants and victims for forensic examination. Mostly, according to the respondents, these categories of people are delivered from various institutions of the Ministry of internal affairs (OIA, department for combatting organized crime – DCOC, TDF), prosecution offices, PTDC, Department of penitentiary (DoP), SCNS and the courts[17]. In addition to bringing the aforementioned persons to the forensic medical institutions, sometimes law enforcement officers bring bodies of people with signs of violence or injuries that could have been caused by violence and resulted in death, as mentioned by 14 respondents. According to other respondents (13 in total), they did not have such cases in their practice, but they had been called to crime scene to perform diagnostics of the bodies on the spot and expert examination in the morgue.

Performing forensic medical examination

A study of forensic medical examination by means of survey and observation has shown that respondents could not give clear answers on many issues. As a rule, they perform medical examination on all requests. One respondent said he could not conduct examination as the applicant was from another area, and four respondents said they refused to perform medical examination as the applicants did not have reference from DIA, and “without reference, decree or cover letter we do not have the right to perform medical examination”.

All respondents were informed on the grounds for performing expert examination. They mentioned the following three documents that are required for performing the examination:

1.     Investigating official’s decision;

2.     Reference from a law enforcement agency (if people come to the police to report battery, the police can refer them to the medical institution to pass forensic medical examination);

3.     Court ruling.

In practice, respondents said that most often law enforcement officials present an investigating official’s decision, sometimes accompanied by medical documents on disability, in order to perform forensic medical examination on a detainee.

As for other formalities, such as obtaining the patient’s consent on performing the examination and clarifying the purpose of examination, mostly the patient’s consent is obtained from detainees or applicants. This was the answer given by 20 respondents, with the following comments:

“It doesn’t matter if the applicant comes by himself, or is delivered by law enforcement officials, we still ask for their consent for examination”.

“We do ask the patient for consent. If the detainee does not agree, we cannot perform the examination”.

If an examination is to be performed on a woman, the experts follow the following practice for performing the examination and requesting the woman’s consent:

“We do not ask for consent if the detainee is a man; however, if a woman is delivered for examination, we cannot undress her without her consent. If the woman refuses examination, we put this in the expert report”.

7 respondents said they do not ask detainees for their consent to pass examination:

“If a person is a detainee delivered by law enforcement officials, and an investigating official’s decision is in place, we do not need to take the patient’s consent”.

“This is not our concern, we just perform the examination of a detainee”.

With regards to explaining the purpose of examination, 16 respondents said they usually do give explanations. At the same time, there were 3 experts who believed explaining the purpose of examination is not their responsibility, or they believed that the applicants/detainees had been informed about the purpose of their delivery to the forensic medical examination center. In addition to explaining the purpose of examination, experts also explain detainees who the expert report would be presented to. 19 respondents said they gave such explanations. 8 respondents said they do not give such explanation:

“We do not explain this, unless the patient asks”.

“This is not our responsibility”.

“If a person is delivered by law enforcement officials, we do not see the need to give explanations”.

Judging by the monitoring results, experts begin examination from a conversation/interview with the applicant or detainee delivered for forensic medical examination. All the respondents say they conduct the interview or conversation, which lasts on average from five minutes to three hours. The duration of the interview depends on the circumstances and degree of injuries. One of the respondents noted that “in such cases as rape we invite a female lab assistant to do the interview”. Another respondent said that “the law does not require conducting an interview; it’s just a historical practice we have”.

In addition to the interview, experts also perform medical inspection, which can last from 30 minutes to three hours, depending on the nature of injuries and the circumstances of the case. All respondents said that medical inspection is performed even if the detainee does not report any injuries or diseases. The inspection is performed using both the detainee’s reports and according to the questions raised in the investigating officer’s decision:

“Examination is performed according to the questions raised by the investigating officer in the decision. If the detainee agrees, we must answer three questions: self-inflicted injuries, the time when injuries were inflicted, and our conclusion. After this we ask the patient for explanations and refer them to the specialists as relevant”.

“If the patient is delivered by law enforcement officials, we perform full medical examination in all cases. If the person comes by themselves, then we do as they request.”

“An expert must see everything”. “Yes, we do a full examination, particularly if there are visible injuries”.

“If detainees are delivered from PTDC, we perform full medical examination without their consent”.

“We must perform full forensic medical examination when a detainee is brought in for examination; this is our responsibility”.

The full examination can last from 2 to 10 days. The duration largely depends on the nature of injuries.

Monitoring has shown that law enforcement officials are usually present during the forensic medical examination. Only three respondents said this was not the case. Many respondents also commented that there is no common practice here, as cases may differ: “On rape cases, when we examine women, law enforcement officials are not present”; “They stay when they feel it is necessary. They have the right to do so”, “They stay if they want to”, “Sometimes they are present, sometimes not. They have the right to stay”, “they can be present during examination, with our permission”, “It depends on the crime. If the policeman is a man and the detainee is a woman, then I ask the officer to leave and they stay in the hall. If both the detainee and the officer are men, then the investigator is present during the examination”, “Their presence depends on the expert”, “They are present mostly for safety reasons”.

During the monitoring, we were also interested to know what forensic experts do when they discover injuries that may have been caused by violence, while the victim states no one have abused them and how the law enforcement officials would explain such violence. Most respondents (21) said they did meet such cases in their practice whereas a detainee has injuries caused by violence, while denying violence has been used. In this case, the experts provide their own conclusion on the causes of injuries present, even if the detainee claims the opposite. At the same time, the experts also reflect in their report the opinions of the detainee and the law enforcement officials on how the injuries were caused. According to the respondents, law enforcement usually explain the injuries by the detainee resisting arrest. The following reasons were also quoted, according to the experts: “The detainee had been injuries before he was taken to the police”, “The injuries were caused through the detainee’s negligence”, “The detainee attacked the police officers”, “The detainee was injured in a fight with his cellmates”.

12 respondents also said that such explanations by the law enforcement officials did not match the nature of the injuries. Respondents explained that “this does not happen very often. In any cases we register the circumstances in which the injuries were caused in our report”. As for the reasons behind injuries that proved lethal for the victim, respondents explain that law enforcement claim the (deceased) detainee’s injuries had been caused by the following: “died because of a disease”, “he fell down”, “he was beaten in the street”, “the person was very sick when delivered to the Department for Combatting Organized Crime and died during the interrogation”.

4.       Conclusions and recommendations

1. The legislation of the Republic of Tajikistan does not establish a separate procedure for investigating, documenting and registering facts of torture and other cruel, inhuman or degrading treatment or punishment. In this respect, during this monitoring we studied the general norms and procedures for documenting and registering injuries caused by violence and conducting forensic examination. Monitoring shows that in practice the doctors also use the general rules for documenting injuries caused by violence and conducting forensic examination, which do not fully comply with the IP principles. In this regard, we suggest the following recommendations:

• Develop a separate procedure for performing forensic examination and medical inspection of alleged victims of torture and other cruel, inhuman or degrading treatment or punishment;
• Modify the system of education and professional training for medical workers to include special courses on the doctors’ role in fighting torture, documenting and registering facts of torture and other cruel, inhuman or degrading treatment or punishment and other aspects in accordance with the principles and rules established by the Manual for efficient investigation and documentation of torture and other cruel, inhuman or degrading treatment or punishment (Istanbul Protocol);
• Conduct regular training for forensic experts and doctors on the standards established in IP;
• Implement and conduct this type of training for paramedic staff, since paramedics are used at TDF and PTDC for forensic examination, as mentioned by law enforcement officials.

 The law states that forensic examination of a detainee or accused does not require the patient’s consent. Concerning medical certification, no rules for obtaining the patient’s consent are stipulated. Practice shows that not all doctors believe it is necessary to ask the consent of people delivered for medical inspection and forensic examination by law enforcement officials. These facts violate the principles of Istanbul Protocol, according to which medical experts must ask for informed consent before performing any kind of expert examination. The recommendations are as follows:

• Change the procedure of performing forensic examination and obligate the experts to obtain informed consent of the patient before performing any kind of examination; in article 210 – obligate the investigation officer to obtain informed consent of the patient for the examination;
• Establish the procedure for delivery and medical examination of detainees and suspects at trauma units, ambulance stations and other medical institutions – both inside the facilities and in case of specialists being called to DIA, TDF, PTDC in accordance with the Istanbul Protocol principles.
• The law allows the investigation officer to be present during the forensic medical examination. In practice, law enforcement officials are also present during medical examination of detainees delivered to medical institutions. This situation violates the principles of Istanbul Protocol, which state that inspection for the purposes of expert examination must be performed behind closed doors, under the control of a medical expert and without the presence of security service agents and other state officials. The following recommendation is suggested:

• Make changes to the Internal Regulation “On some process reasons for performing forensic examination in the Republic of Tajikistan” and the practice of performing forensic examination, so as to exclude the presence of investigation officer and other law enforcement officials during the forensic medical examination;
• By training police officers, eradicate the practice of police presence during medical inspection of detainees delivered to medical institutions.

 The Law of the Republic of Tajikistan “On the procedure and conditions of detention of suspects, accused and defendants” mentions medical certification when suspects, accused and defendants are visited by medical staff in detention centers, the procedure for which is established by internal regulations of the detention centers. The following recommendation can be made:

• Include in the Law “On procedure and conditions of detention for suspects, accused and defendants” provisions on the purpose (goal) of the medical certification by medical staff in the detention facilities and the procedure for performing it, since such regulations are important guarantees of torture prevention and must be established by law rather than by internal regulations of the detention facilities.