Day 5: "Evidence tainted by torture in law and practice - Domestic perspectives from the OSCE region"

[Nora_Katona]

Welcome to Day 5!

During the Online Discussion that took place in February 2022, we published the written contributions of a number of renowned experts on selected topics concerning the inadmissibility of evidence tainted by torture. We recommend visiting the Online Discussion page to read diverse perspectives!

Today, after some postponement, you can read the contributions of Natalia Taubina, Public Verdict Foundation, Vadym Chovgan, Danish Institute against Torture and Notabene, Tajikistan. The contributions, submitted in February 2022, elaborate on the obstacles in the implementation of the exclusionary rule in Russia, Ukraine and Tajikistan.

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Disclaimer: The content of the contributions represents the authors’ individual experience and perspective. The opinions stated in these articles are the authors’ own and do not reflect the views of ODIHR or the LBI-GMR.

[Nora_Katona]

Introduction

The Russian Constitution, in its Article 50, Part 2, prohibits any use of evidence obtained in violation of federal law. According to Article 75, Part 2, of the Russian Criminal Procedure Code, the following types of evidence are considered inadmissible:

1. any statement made by a suspect or accused during pre-trial proceedings in a criminal case in the absence of a lawyer, unless this statement is subsequently confirmed in court;

2. any victim or witness statement which is based on speculation, assumption or hearsay, as well as any statement from a witness for which he or she cannot indicate the source of information;

3. other evidence obtained in violation of the Russian Criminal Procedure Code.

On 29 November 2016, the Russian Supreme Court Plenary adopted its Ruling no. 55 “On Court Sentence.” This Ruling states in paragraph 1 that “by virtue of provisions of … Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms … a sentence may only be considered lawful if adopted following a fair trial.” Let us recall that Article 6 of the Convention covers, inter alia, issues such as presumption of innocence, the right to defence, and use of evidence (including the use of evidence obtained through torture, provocation, or invasion of privacy). The Supreme Court’s Ruling states in paragraph 12: “If the defendant wants to change his or her testimony made in the presence of a defence lawyer by saying that such testimony was made under duress due to the use of illegal methods of investigation, the court must take sufficient and effective measures to verify such statement of the defendant.” The Ruling further states, “If there are grounds for verifying the defendant’s statement in the manner prescribed by Article 144 of the Criminal Procedure Code, the court should forward such statement to the head of the relevant pre-trial investigation authority. Such verification does not relieve the court from the obligation to examine the findings from this verification and reflect the court’s conclusions in the sentence” (paragraph 13 of Ruling no. 55).

Thus, the regulatory framework enables a sufficient and effective response to a defendant’s allegations of ill-treatment during the pre-trial investigation, in particular in the case of having made a confession under torture. Russian law gives courts every reason to require that the investigating authority should verify torture allegations and to examine evidence in the main trial taking into account the defendant’s claim of torture. For example, courts may exclude such evidence. However, during the Public Verdict Foundation’s 15 years of work, we have not seen a single such case.

I. What happens in practice?

Unfortunately, things look different in practice, and courts fail to protect persons subjected to torture during pre-trial investigations.

Our observations vary across courts and trials, but the one thing they all have in common is their lack of substantive response to torture reports.

Situation 1: A defendant in a criminal case states in court that he was tortured during the pre-trial investigation. Previously, he reported the torture to the investigator, and the Investigative Committee reviewed his complaint but refused to initiate a criminal case.

The court examines the findings from the torture complaint investigation. If the defendant has not challenged the investigator’s decision, the court interprets it as the defendant’s acceptance of this decision. The court then upholds the investigator’s position and finds no violation in the law enforcement officers’ conduct.

Situation 2: A defendant in a criminal case reports torture at the investigation stage, but the investigating authority refuses to initiate a criminal case into the torture allegations, and the defendant appeals this refusal in court.

If the court denies the appeal and upholds the refusal to investigate the alleged torture, then the trial court, which considers the defendant’s main case, will rely on the former court’s judgment. The trial court will say that the torture report does not require a separate consideration because it has been previously examined by a court, no crime has been found, and there is no need to institute criminal proceedings into the torture allegations.

Situation 3: At the final stage of the pre-trial (preliminary) investigation of a criminal case, the defendant complains of torture or appeals the refusal to initiate criminal proceedings into torture or challenges the investigator’s inaction concerning his torture complaint. The court, to which the defendant appeals, will say that since the complaint affects the main criminal case, it should be examined by the trial court which hears the defendant’s main case.

However, rather than return the complaint to the applicant, the court registers the complaint and makes a de jure decision on it (by stating that the complaint should be examined by the trial court that hears the main case). The trial court will then refuse to give the torture complaint a separate consideration under the pretext that another court has already examined the matter (see Situation 2). This denies the individual any opportunity whatsoever to have their torture complaint investigated.

Situation 4: A defendant reports torture for the first time during his or her main trial.

Seeing that the defendant has never raised the issue before, the court will ask why the defendant has not reported torture earlier. In most cases (we at the PVF have copies of court records in dozens of criminal trials), the defendants or their lawyers refer to “pressure from cellmates,” “threats from prison officers or investigators to impose tougher detention conditions," etc. Courts, however, dismiss such explanations and refuse to examine them critically, to initiate separate proceedings into torture reports or to forward such reports to investigating authorities for verification. Moreover, courts do not exclude as inadmissible the evidence obtained from the defendant through torture. As a result, the criminal proceedings continue uninterrupted, and the torture complaint ends up ignored altogether without affecting the final judgment in any way.

An example of this situation would be the case of defendant Zh. in Krasnoyarsk, who, prior to his testimony to the jury, was assaulted and beaten to force self-incrimination. Mentioning pressure and torture in front of jurors is not allowed – such matters are discussed in their absence. So in the absence of the jury, the defendant removed his clothes in the courtroom to show the evidence of ill-treatment, but the court failed to respond in any way. Eventually, the defendant refused to self-incriminate and pleaded not guilty. The jury acquitted him.

The Situation 1 described above where the torture victim complains during the pre-trial investigation would have been adequate – except for the widespread absence of effective investigation of torture reports in Russia.

II. Ineffective investigation

The ineffectiveness of torture investigations is due primarily to the Russian authorities’ poor performance in searching for, obtaining, and assessing evidence of torture complaints. These are the responsibilities of the investigator tasked in the Russian criminal justice system with conducting pre-trial investigations into allegations of torture.

Criminal investigators are empowered by Russian law to act independently at their own discretion; the legal theory considers this provision necessary to ensure independence of the investigation. But in the Russian law enforcement practice, this principle is often abused as a universal justification of an investigator’s inaction. For example, an investigator may fail to appoint an expert examination; when a torture victim or their lawyer appeals the investigator’s inaction in court, the latter will often disregard the victim’s arguments as to why an expert examination is essential for an objective picture of events. Usually, courts refuse to examine the investigator’s actions or inaction critically and refer to the investigator’s independence to dismiss the torture victim’s complaint.

Independent investigation – supported, at least in theory, by the legally stipulated independence of the investigator – must also follow proper practices such as the impartial assessment of available information and evidence. An investigator is required to assess evidence for reliability and significance without prejudice as to the source of this information.

In practice, however, most investigators are biased against torture victims. If torture is reported by someone accused of a crime, their statement and their version of the events often get rejected by the investigator who typically argues that “a criminal’s words cannot be trusted.”

An effective investigation is impossible unless the investigator acts promptly to identify and document available evidence. But in many cases, investigators neglect this duty in the context of torture allegations.

Adding complexity to evidence collection is the fact that virtually all such evidence is under full and exclusive control of the alleged torture perpetrators. This is described in some detail in the Russian NGO Coalition’s Shadow Report submitted to the UN Committee against Torture in 2018. An investigator tasked with verification of a torture report (alleging torture in police custody or in prison) can only use evidence to which they are given access by police officers or penitentiary/pre-trial detention personnel, including the medical staff who often fail to document physical, let alone psychological, impacts of torture, nor do they report torture to the law enforcement authorities, unlike medics in civilian hospitals.

Access to all video surveillance recordings in places of detention is exclusively at the disposal of these institutions. The administrators of such institutions often refuse to make such recordings available citing that they are “for official use only.” We have documented refusals to disclose recordings requested by investigators. Very common is the situation where certain recordings are requested in court proceedings, but prison administrations claim that they have been either damaged or deleted. In our practice, we have often noted cases where medical examinations of inmates are conducted superficially, sometimes with prison bars separating the medic from the inmate, and signs of torture are not properly documented. As a result, crucial evidence of ill-treatment is lost forever.

For example, in one of the cases assisted by PVF, we obtained video footage of a medical examination of V. after he was beaten at Penal Colony IK-1 in Yaroslavl in April 2017. It can be seen clearly in the video that V. was in a room behind bars, separated from the medic who was outside. In the video, V. shows traces left by the beatings, including huge hematomas which can be clearly seen. However, in its report to the European Court on the implementation of the interim measures indicated in V.’s case, Russia claimed that medics had not documented any injuries.

III. Fabricating false evidence of innocence

Another common problem is the use of so-called “activists” in penal colonies (prisoners who cooperate with the prison administration). These inmates are often used as alleged eyewitnesses testifying that there was no beating. Since the administrations of penitentiary institutions have full control over the evidence of torture, they use their power to put pressure on witnesses, forcing them to give false statements.

IV. Pressure on victims of torture and ill-treatment

Bringing retaliatory charges against individuals who report torture to the authorities is a widespread practice. In particular, applicants often face “false accusation” charges, in which their torture report is treated as a false accusation. The Russian NGO Coalition’s Shadow Report covers this issue extensively as well. Convicted prisoners are particularly vulnerable to false accusation charges. Indeed, they are likely to face persistent and serious threats of prosecution under this article to force them to withdraw torture complaints. But in our practice, we have also noted cases of people in the community who reported torture by police and faced charges and trials under Article 306 (false accusation). Being sentenced under Article 306 effectively deprives a person from any further opportunity to have their torture complaint investigated.

V. What has been the impact of the European Court’s judgments on the enforcement practice?

According to the Russian Criminal Procedure Code, the European Court of Human Rights (ECtHR) judgments are considered “emerging new circumstances” that warrant re-examination of prior decisions of domestic courts which are already in effect (Article 413, part 4 (2) of the Criminal Procedure Court).

Below are some observations on how the European Court’s judgments against Russia in cases alleging torture have influenced the possibility of having domestic proceedings reopened in cases where confessions under duress were used as evidence of guilt.

In the Mikheyev group of cases, the Court found Russia in violation of Article 3 (prohibition of torture) in 172 cases, and in 27 cases, the Court also found a violation of Article 6 (right to a fair trial) due to the use of confessions extracted under torture as evidence in court. According to a Memorandum prepared by the Department for the Execution of ECtHR Judgments and providing an overview of the current situation with respect to the individual measures in the Mikheyev group of cases (H/Exec(2021)18 – 16 November 2021, H/Exec(2021)18 - Memorandum - Mikheyev v. Russian Federation group of cases (coe.int)), only in one of the 27 cases, was the applicant acquitted after his prior conviction based on statements made under duress was quashed. In another case, the new proceedings were discontinued following the applicant’s death, and in yet another, the case was remitted for re-examination in 2014, but the Russian Federation has not yet provided information on the outcome. In six cases, the new proceedings upheld the original guilty verdicts and sentences. Moreover, in two cases, Abdulkadyrov and Dakhtayev, 35061/04, and Mukayev, 22495/08, the Presidium of the Supreme Court found the applicants’ reports of torture inconsistent and unconfirmed by the domestic inquiries, including the one held subsequent to the Court’s judgment. In 18 other cases, the Memorandum prepared by the Department for the Execution of Judgments indicates, “information is awaited as to whether the applicant has sought a reopening of the domestic proceedings against him.”

These statistics lead us to the following conclusions:

• the procedure whereby proceedings must be automatically reopened in cases where the Court has found a violation of Article 6 involving the use of evidence obtained under duress is not working properly;
• ECtHR applicants are not aware of the possibility to request the Russian Supreme Court to re-examine the main criminal case against the applicant;
• the outcomes of domestic inquiries into torture reports continue to have a bearing on domestic courts’ decisions.

The situation gets even more complicated when the Court finds a violation of Article 3, establishing that torture was used to extract a confession, but does not find a separate violation of Article 6. In such cases, if the applicant seeks a reopening of the domestic proceedings against him by filing a request with the Russian Supreme Court, the request will be left without consideration.

On 9 June 2011, Mr Panchenko was found guilty by the Altai Regional Court and sentenced to 24 years in prison. The verdict was based on Panchenko’s confession. On 4 February 2020, the ECtHR issued its judgment in Panchenko v. Russia (no. 20605/11) as part of the Nigmatullin and others v. Russia group of cases (47821/09 and 9 others). The Court found a violation of Article 3 of the Convention under its substantive and procedural limbs in respect of all applicants. The court found that Panchenko was tortured with a view to extracting a confession. In December 2020, the applicant appealed to the Supreme Court seeking a reopening of the domestic proceedings against him based on the Court’s judgment. On 21 January 2021, the Supreme Court sent back Panchenko’s request without consideration.

In December 2021, the Council of Europe Committee of Ministers adopted a decision on the Mikheyev group of cases, urging the Russian authorities, inter alia, to ensure that all evidence obtained under torture is prima facie inadmissible and cannot be used by prosecutors and criminal courts for the purposes of constructing criminal charges or convictions.

Conclusions

The above leads us to the following key conclusions:

• In Russia, courts fail at their task of banning evidence obtained through torture.
• Courts do not provide an effective mechanism for either responding to torture complaints or excluding evidence obtained through torture, nor do they properly consider reports of torture in assessing evidence in criminal trials generally.
• Instead of examining evidence in this category of cases, Russian courts often base their judgments on prejudice and assumptions rather than verifiable information.
• No proper system is in place for re-examination of domestic court decisions based on new circumstances, such as the finding by the European Court of Human Rights of violations with respect to domestic court proceedings in criminal cases.

Regarding the fourth point, it would be useful to discuss how it works in other countries and what needs to be done to ensure a proper system of re-examination. Also, it would be good to discuss any further steps/strategies within the framework of implementation of the individual measures to ensure re-examination of domestic decisions based on the finding by the European Court of Human Rights of violations with respect to domestic court proceedings in criminal cases.

Natalia Taubina, Director of Public Verdict Foundation

Ms. Taubina has been working in the field of human rights since 1992. The area of Ms. Taubina’s expertise is international human rights standards and mechanisms; human rights in the work of law enforcement bodies, including torture prevention; development of civil society organizations, NGO management, and evaluation.

This contribution was written in February 2022.

[Nora_Katona]

Introduction

Ukraine is Europe’s champion according to the number of life sentenced prisoners who have no realistic prospect of release. There are over 1500 such persons in Ukrainian prisons.

Many of them claim that they were tortured during investigation to confess about the crimes they did not commit. They alleged torture during trial, but it did not influence their final verdicts. Once convicted, it became close to impossible for them to prove and exclude evidence that was tainted by torture.

I. Dark 90s and 2000s

After the abolition of the death penalty in Ukraine in 1997-98, for over a decade more than 100 life sentences were passed every year. In recent years, there have been 15-20 such sentences per year. To some extent the drastic decrease could be explained by a reduction in crime rates. But mostly it appears to be caused by a more lenient approach of judges to penalties and their more critical assessment of evidence, particularly in the case of alleged torture. That was not the case in the past – torture was a common instrument to prove crimes, especially if it was about an aggravated murder punishable by a life sentence.

National human rights organizations claim that up to 10% of lifers’ cases raise reasonable doubts as to their lawfulness. Such cases would involve torture and self-incrimination. However, there are no realistic mechanisms to correct these alleged mistakes of the past.

II. Mechanism for “old” lifers

Until 2012, lifers were sentenced according to the Code of Criminal Procedure of 1960, which was mostly developed during the Soviet times. The provisions of the old code did not contain proper guarantees against accepting evidence obtained through torture. Confession-based verdicts were a norm, even after 1991 when Ukraine became independent. Further, the proportion of acquittals remained around 0.2-0.3%.

In 2012, a new Code of Criminal Procedure was adopted. It was generally considered compliant with the respective international standards such as the ECtHR case law. The exclusionary rule of the new code was taken seriously in practice, which contributed to the above-mentioned reduction in the number of life sentences. The new code clearly stated that evidence cannot be based on self-incrimination, which significantly reduced incentives for torture in the practice of law enforcement bodies.

“Old” lifers, e.g. those who were tried under the old Code, attempted to apply to national courts in order to get their sentences reviewed based on the new standards. They used the extraordinary circumstances clause that allows reviewing definite verdicts in case of “forging evidence” or “abuse” on the part of investigators, prosecutors or judges.

However, the courts have consistently refused to admit such applications. The main reason has been that the claimed circumstances were not extraordinary (literally ‘newly discovered’ (нововиявлені)). Thus, if a prisoner alleged tortured or even had old evidence that he was tortured during trial, it would not be considered ‘newly discovered’ circumstances and would not qualify as a ground for review. In practice, ‘newly discovered’ means that the facts were unknown during the trial even if they disclose that torture was used to extract a confession used as evidence.

III. Efforts to establish an additional mechanism

In light of these obstacles to get sentences reviewed, national human rights activists and legal experts tried to introduce an extraordinary mechanism. In 2015, together with MPs, they put forward the draft law 2033a that proposed the creation of a mechanism allowing for the review of old cases, if the verdict was grounded on:

• A self-incrimination statement, which a person later denied claiming that it was extracted by torture, or if such a statement was obtained through another violation of rights (e.g. without presence of a lawyer);

• Testimonies obtained from a person who initially was a witness and then became a suspect;

• Distorted circumstances that do not correspond to the facts;

• Circumstances based on evidence that was obtained through violation of the defendants’ rights at any stage.

I list the above grounds because they demonstrate the range of issues that are still impossible to use as procedural grounds to initiate a review of the “old” life sentences.

The draft law was adopted in the first reading. But later it got stalled with little chance for ultimate adoption. There are a few possible reasons for that: a) a part of the professional community considered that it would violate a principle of legal certainty by creating an extraordinary mechanism in addition to the existing ones (i.e. ‘extraordinary circumstances’); b) political reluctance to acknowledge mistakes of the past in such sensitive cases disturbing society; c) lobbying by some representatives of the judiciary and law enforcement who might have to face negative legal consequences if some lifers were acquitted as a result of the law, e.g. forging criminal cases.

Conclusions

Mechanisms to dispel doubts about justifications of life sentences, even if doubts are about the use of torture, might be difficult to establish. The efforts may face barriers of the traditional legal system, which is not built to deal with consequences of a different legal reality in the past. In addition, penal populism as well as lobbying by the alleged perpetrators of torture may create additional obstacles.

In your countries, is there an extraordinary mechanism allowing for the review of life sentences in case of doubts similar to those described above?

Many long-term prisoners claim they are innocent. Not all of them are. Should it be considered an unjustified legal favour to give life prisoners an additional, extraordinary chance to prove their innocence?

Vadym Chovgan, Legal consultant at Danish Institute against Torture - DIGNITY

Dr. Vadym Chovgan is a human rights lawyer specializing in the prevention of torture, criminal justice and prisons.

This contribution was written in February 2022.

[Nora_Katona]

Introduction

On 10 February 1995, the Convention against Torture entered into force in Tajikistan. By acceding to this treaty, the Tajik authorities have undertaken to protect all persons under their jurisdiction from torture and other forms of ill-treatment and to reflect in law and in practice the principles enshrined in the Convention. Unfortunately, torture and forced confessions of suspects remain a pressing problem in Tajikistan.

Recently, the government has taken measures to strengthen the prevention of torture and ill-treatment. In the following, we analyze some of the most significant developments.

The crime of torture:

In 2012, the Criminal Code of the Republic of Tajikistan (hereinafter referred to as the CC of the RT) was amended with the article 1431 “torture”. On January 2, 2020, legal amendments were adopted to Article 1431 (“torture”) to include “a third person” as the subject of the crime in the definition of torture. At present, article 1431 includes the definition of torture as “intentional infliction of physical and (or) mental suffering committed by the person conducting the inquiry or preliminary investigation, or by another official, either with their instigation or with the tacit consent or with their knowledge by another person in order to obtain information or confession from a tortured or third person or punish him for an act that he or a third party has committed or is suspected of committing, as well as to intimidate or coerce him or a third party or for any other reason based on discrimination of any kind”. Article 1431 also provides for aggravating circumstances affecting the severity of punishment, such as committing torture: a) repeatedly; b) by a group of persons by prior agreement; c) against a woman known to the perpetrator to be pregnant, or a person known to be a minor or a person with a disability; d) with the infliction of a moderate bodily harm (part 2), if they are: a) committed with the infliction of serious bodily harm; b) causing the death of the victim through negligence or other serious consequences (part 3).
Article 1431 of the Criminal Code of Tajikistan consists of the concept and qualifying elements, in accordance with which the punishment is provided. The amendments from 2020 also increased sanctions: in part 1 - from five to eight years in prison (previously it was: two to five years); with the deprivation of the right to hold certain positions or engage in certain activities for up to five years (previously up to three years); in part 2 - from eight to 12 years of imprisonment (previously from five to eight) with the deprivation of the right to occupy certain positions or engage in certain activities for a period of five to 10 years (previously: up to five years) and in part 3 - from 12 to 15 years imprisonment (previously from 10 to 15). Fines were also removed from the possible sanctions under Article 143 Part 1 of the Criminal Code. At present, the concept and sanctions for torture are in line with the standards of the Convention against Torture.

Fundamental legal safeguards:

As mentioned above, on 14 May 2016, the President signed amendments to the Law on Detention Procedures and Conditions for Suspects, Accused Persons and Defendants (further Law on Detention Procedures) and to the Criminal Procedure Code (CPC), improving legal safeguards in detention for those held under criminal proceedings. For example, the amendments provided for improved detention registration procedures and the rights to promptly inform family and legal counsel. The amendments also stipulated that detention begins from the moment of de-facto deprivation of liberty and that the identity of all detaining officers should be recorded. In addition, an obligatory medical examination was introduced prior to placement a suspect in a temporary police detention facility.

On 2 January 2020, President Rahmon signed laws and amendments relating to torture/ill-treatment, some of which further strengthened legal safeguards in detention particularly in regard to minors.

On 4 July 2020, amendments were made to the CPC removing “gravity of the punishment” as grounds for remanding a suspect in custody. Also, on 2 February 2021, amendments to the Law on Detention Procedures entered into force, meaning a lawyer can now access detainees on the basis of the legal license, and no longer requires permission from the investigator.
However, the above amendments are not consistently implemented in practice. Most allegations of torture and ill-treatment continue to originate in the time between the arrest and the placing of the suspect in a temporary police detention facility.

In addition to ensuring the consistent implementation in practice of existing legal safeguards, further amendments are needed. For example, Article 92, part 3 of the CPC, which applies to adults and minors alike, provides that a maximum of 72 hours may elapse from the moment of apprehension until a detainee is brought before a judge. The Human Rights Committee and the Special Rapporteur on Torture recommended that this period be limited to a maximum of 48 hours. In paragraph 83 of its 2007 General Comment No. 10, the Committee on the Rights of the Child recommended that for minors this time period should not exceed 24 hours.

After the May 2016 amendments the CPC now unequivocally stipulates that detainees are entitled to access to a lawyer as of the moment of their actual detention. However,
this provision is not consistently implemented in practice (For additional information please see: https://www.iphronline.org/tajikistan-torture-ill-treatment-the-death-penalty-and-the- shrinking-space-for-ngos.html).

The February 2021 amendments clarified that lawyers need only show their practice license in order to access their clients in detention; this legislation applies to all types of detention facilities in the country. This is a significant development, but further monitoring is required to assess its implementation.

Independent lawyers faced major obstacles to accessing their clients in pre- and post-trial detention facilities. In the period under review, they were typically refused access to detainees held in pre-trial detention facilities under the State Committee for National Security. Staff of investigation-isolation facilities (SIZOs according to the Russian acronym), often referred to internal regulations preventing them from granting access to lawyers.

Complaints and investigations:

Complaints about torture and ill-treatment are often not investigated effectively because the investigating institutions are not sufficiently independent. No separate and independent mechanisms capable of carrying out effective criminal investigations and prosecutions have been set up in Tajikistan despite recommendations by the CAT, the Human Rights Committee (HRC) and the Special Rapporteur on torture. The authorities have repeatedly stated that what they claim to be a low number of torture cases does not warrant this.

The Prosecutor General’s Office, through dedicated units of prosecutors, is tasked with leading investigations into cases opened under Article 1431, but even in these cases investigative activities are often conducted by police. When a complaint is lodged with the Prosecutor General’s Office against the decision of a local prosecutor’s office not to open a criminal case into allegations of torture/ill-treatment or to suspend the investigation, the Prosecutor General’s Office often refers the case back to the same local prosecutor’s office if it considers that the case needs further checking. In this way cases can be bounced back and forth between prosecutors’ offices for months or even years.

On 7 September 2019, the Prosecutor General adopted an “Instruction on Methods for Prosecutorial Supervision of the Legality of Prevention, Detection and Investigation of Torture”, containing key principles outlined in the Convention against Torture and the Istanbul Protocol. It sets out a detailed mechanism for the investigation of allegations of torture and establishes a step-by-step procedure for the medical examination of victims based on the standards of the Istanbul Protocol. The Instruction is a binding document for employees of prosecutors’ offices.

The inadmissibility of evidence obtained by torture:

Article 15 of the Convention against Torture states that “Each State Party shall ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made”. This obligation is absolute and there are no exceptions to it.

In line with the May 2016 amendments to the CPC, evidence is considered inadmissible if it is obtained by way of torture, ill-treatment, violence, threats, deception or other unlawful activities (Article 88-1, “inadmissible evidence”). Questions of inadmissibility of evidence and limitations on their use in the criminal procedure are decided by the police inquirer, the investigator, the prosecutor, the court, the judge, either on their own initiative or following a petition by the parties. Evidence of torture or ill-treatment of a suspect, accused or defendant have to be checked and evaluated regarding the admissibility of their statements as evidence, no matter whether a complaint or a petition have been filed by the victim or the lawyer. The inquirer, investigator, prosecutor, court or judge who decide about the question of admissibility are obliged to clarify in each case which specific violation took place and issue a decision with a justification. When evidence is ruled to be inadmissible due to torture or ill-treatment, the police inquirer, investigator, prosecutor, court or judge take measures within their respective remits pertaining to the responsibility of those individuals who allowed the abuse. All evidence ruled to be inadmissible is considered invalid.

However, there is no reliable enforcement mechanism in place to guarantee the implementation of this legislation in practice. Often, judges dismiss torture allegations by defendants or close the inquiry following an interview with the alleged perpetrators. Or, when lawyers petition during the trial that Article 88-1 be applied, judges often delay their decision until the verdict is pronounced, which violates Article 175 of the CPC (“obligatory consideration of petitions”). To date, there are no statistics on the number of criminal cases in which the provisions of article 88, paragraph 1, of the Code of Criminal Procedure have been applied in cases involving the use of torture. This is due, inter alia, to the fact that there is no separate section in the system of judicial statistics on the application of the law by the courts. The Coalition against Torture and Impunity was also unaware of any case in which article 88-1 had been used in practice in cases of torture.

For example, an analysis of complaints received by the Coalition against Torture and Impunity between 2015 and 2019 (a total of 97 complaints were analysed) shows that in 68 cases during the trial, lawyers and/or victims of torture have alleged torture during detention and criminal investigations. In 7 cases, the court ordered the Prosecutor’s Office to verify the allegations of torture, in 8 cases the court examined the allegations of torture, and in the remaining cases the court did not respond to the allegations of torture. As a result of a procuratorial inspection, criminal proceedings were refused in seven cases. The defence did not have access to the verification materials. In none of the cases were the provisions of article 88, paragraph 1, of the Code of Criminal Procedure applied.

Conclusion

Despite positive steps in recent years, torture and other forms of ill-treatment are still pervasive problems in Tajikistan. The authorities do not publish unified and comprehensive statistics on complaints, investigations and convictions relating to torture and other forms of ill-treatment. Some government agencies release their own statistics at press conferences and in government reports to UN bodies, but they only cover crimes opened under Article 143.1 (“torture”) although cases involving allegations of torture and other forms of ill-treatment are often opened under other articles of the Criminal Code such as “abuse of power”, “exceeding official duties” or “failure to carry out or inappropriately carrying out duties”.

Public Foundation Notabene

Notabene is one of the leading think-tank organizations Tajikistan in the field of human rights and civil society development. Notabene is one of the founders of the NGO Coalition against torture in Tajikistan and led the Coalition until February 2017. At the moment Notabene coordinates the Analytical Center of the Coalition and is responsible for the national and international advocacy.

This contribution was written in February 2022.

[GiulianaMonina]

Thank you very much Natalia, Vadym, and Notabene for contributing to this fifth and last day of the Online Discussion “The Inadmissibility of Evidence Tainted by Torture” with your interesting contributions!

We would like to invite also others to share any additional thoughts on other practical challenges, but also promising practices or success stories from your countries. For example, do your countries have appropriate remedies and a system for re-examination domestic proceedings?