JUSTICE SYSTEM IN TAJIKISTAN
Legal system: civil law system. Subordinate courts: regional and district courts; Dushanbe City Court; viloyat (province level) courts; Court of Gorno-Badakhshan Autonomous Region International law organization participation: Tajikistan has not submitted an ICJ jurisdiction declaration; accepts ICCt jurisdiction. [Source: CIA World Factbook =]
People have traditionally shown total respect for local khans, emirs or chiefs, who in turn have traditionally not shared power or limited it by law. Social control has traditionally been exerted through public opinion, especially that of local elders, known in many places as “white beards” (aksakal in Kyrgyz and oqsoqol in Uzbek).
The justice system is modeled after the Soviet justice system. There is no freedom in the justice in political and criminal trials the conviction rate is over 99 percent. Judges have been called "shamefully compliant." One judge dismissed claims of torture victim because "they couldn’t name their torturers."
The constitution, adopted in 1994 as the supreme law of Tajikistan, calls for an independent judiciary, but the executive branch and criminal groups have considerable influence on judicial functions. Bribery of judges, who are poorly paid and poorly trained, is commonplace. The court system has local, district, regional, and national levels, with each higher court serving as an appellate court for the level below. Appeals of court decisions are rare because the populace generally does not trust the judicial system. Constitutional guarantees to the right to an attorney and to a prompt and public trial often are ignored. The Soviet-era presumption of the guilt of the defendant remains in force. The procurator’s office conducts all criminal investigations. Trials are heard by juries except in cases of national security. [Source: Library of Congress, January 2007 **]
According to Everyculture.com: “Although the constitution guarantees human rights, governance amounts to one-man rule based on emergency executive powers. The result has been imprisonment, exile, and assassination of political figures. The police and the procurator's office may legally detain a suspect without a warrant. Security officials use beatings to extort confessions. Most citizens fear retaliation by the police. Many judges are poorly trained. Bribery of judges is common, as is political and paramilitary pressure. [Source: Everyculture.com ||||]
The constitution provides for freedom of religion, but the Council of Ministers registers religious communities and monitors the religious establishments to observe political activity. The way in which people conduct their lives is affected by the opinion of others. When a crime is committed, the authorities are usually contacted and the rule of law is invoked. However, when a social rule is broken, the clan will deny privileges to the offender, who may be beaten or ostracized. ||||
See Separate Articles on 1) FAMILIES, MEN, WOMEN AND CHILDREN IN TAJIKISTAN, 2) SOCIETY IN TAJIKISTAN under People and 3) WARLORDS IN TAJIKISTAN under Government for more insights into the forces behind traditional and non-institutional Tajik justice.
Evolution of the Tajikistan Legal System in the 1990s
Independent Tajikistan's system of courts and police evolved from the institutional framework established in the Soviet era. The judiciary is not fully independent; the 1994 constitution gives the president the power to remove judges from office. In the wake of the victors' wave of violence against actual or potential supporters of the opposition at the end of the civil war, the post-civil war regime continued to ignore due process of law in dealing with opposition supporters. Numerous opposition figures were arrested and held without trial for prolonged periods; representatives of the International Committee of the Red Cross and Helsinki Watch were not permitted to see political prisoners. Extrajudicial killings, disappearances, warrantless searches, the probable planting of incriminating evidence, arrests for conduct that was not illegal, and physical abuse of prisoners were all part of the new regime's treatment of opposition supporters. The regime established its own secret prisons for those held on political charges. [Source: Library of Congress, March 1996 *]
In the new government installed at the end of the civil war, the minister of internal affairs, hence the national head of police, was Yaqub Salimov, who had no law enforcement experience and himself had led a criminal gang. Salimov was an associate of Sangak Safarov, a top antireformist military leader who also had an extensive criminal record. Salimov used his law enforcement position to shield his criminal confederates and to intimidate other members of the cabinet. In 1995 President Rahmonov finally maneuvered Salimov out of power by appointing him ambassador to Turkey. Salimov's successor as minister of internal affairs was Saidomir Zuhurov, a KGB veteran who had been minister of security in the post-civil war government. *
Thus, in the mid-1990s Tajikistan's national security condition was tenuous from both domestic and international standpoints. Internally, the concept of uniform law enforcement for the protection of Tajikistani citizens had not taken hold, in spite of constitutional guarantees. Instead, the republic's law enforcement agencies were at the service of the political goals of those in power. Externally, Tajikistan remained almost completely reliant upon Russia and its Central Asian neighbors for military protection of its borders. By 1996 years of internationally sponsored negotiations had failed to bring about a satisfactory compromise between the government and the opposition, offering little hope that CIS troops could leave but providing the Rahmonov government a pretext for ongoing restraint of civil liberties. *
Judicial Branch in Tajikistan
The constitution provides for an independent judiciary. The Supreme Court is the highest court. Other high courts include the Supreme Economic Court and the Constitutional Court, which decides questions of constitutionality. The president appoints the judges of these three courts, with the approval of the legislature. There is also a Military Court. The judges of all courts are appointed to 10-year terms. [Source: Library of Congress, January 2007 **]
Judicial branch: highest courts: Supreme Court (consists of the chairman, deputy chairmen, and 34 judges organized into civil, criminal, and military chambers); Constitutional Court (consists of the court chairman, vice-president, and 5 judges); High Economic Court (consists 16 judicial positions). Judge selection and term of office: Supreme Court, Constitutional Court, and High Economic Court judges nominated by the president of the republic and approved by the National Assembly; judges of all 3 courts appointed for 10-year renewable terms with no limit on terms, but last appointment must occur before the age of 65. [Source: CIA World Factbook =]
The 1994 constitution prescribes an independent judiciary, including at the national level the Supreme Court, the Constitutional Court (theoretically, the final arbiter of the constitutionality of government laws and actions), the Supreme Economic Court, and the Military Court. The Gorno-Badakhshan Autonomous Province has a regional court, and subordinate courts exist at the regional, district, and municipal levels. Judges are appointed to five-year terms, but theoretically they are subordinate only to the constitution and are beyond interference from elected officials. However, the president retains the power to dismiss judges, and in practice Tajikistan still lacked an independent judiciary after the adoption of the 1994 constitution. In June 1993, the Supreme Court acted on behalf of the Rahmonov regime in banning all four opposition parties and all organizations connected with the 1992 coalition government. The ban was rationalized on the basis of an accusation of the parties' complicity in attempting a violent overthrow of the government. [Source: Library of Congress, March 1996 *]
As in the Soviet system, the Office of the Procurator General has authority for both investigation and adjudication of crimes within its broad constitutional mandate to ensure compliance with the laws of the republic. Elected to a five-year term, the procurator general of Tajikistan is the superior of similar officials in lower-level jurisdictions throughout the country. *
Arrest Procedures and Treatment of Detainees in Tajikistan
According to the U.S. Department of State: “According to the law, police may detain an individual up to 12 hours before authorities must file criminal charges. If authorities do not file charges after 12 hours, the individual must be released, but police often did not inform detainees of the arrest charges. If police file criminal charges, they may detain an individual 72 hours before they must present their charges to a judge for an indictment hearing. The judge is empowered to order detention, house arrest, or bail pending trial. [Source: “Country Reports on Human Rights Practices for 2014: Tajikistan,” Bureau of Democracy, Human Rights and Labor, U.S. Department of State *]
According to the law, family members are allowed access to prisoners after indictment, but officials often denied access to attorneys and family members. The law states that a lawyer is entitled to be present at interrogations at the request of the detainee or lawyer, but in many cases authorities did not permit lawyers timely access to their clients, and initial interrogations occurred without them. Detainees suspected of crimes related to national security or extremism were held for extended periods without being formally charged. *\
Defense advocates alleged that prosecutors often held suspects for lengthy periods and registered the initial arrest only when the suspect was ready to confess. In most cases pretrial detention lasted from one to three months, but it could extend as long as 15 months.
Amnesty: On October 30, President Rahmon signed a new amnesty law that would make prisoners with disabilities, World War II veterans, military deserters, convicts older than 55, women and minors, those suffering from cancer or other serious illnesses, foreign nationals, and participants of political and armed conflicts in Tajikistan eligible for release. The law reportedly does not grant amnesty to those convicted of murder, rape, terrorism, espionage, or treason. *\
Courts and Judges in Tajikistan
The court system has local, district, regional, and national levels, with each higher court serving as an appellate court for the level below. Appeals of court decisions are rare because the populace generally does not trust the judicial system. Low wages for judges and prosecutors left them vulnerable to bribery, a common practice. Government officials subjected judges to political influence. [Source: Library of Congress, January 2007 **]
According to the U.S. Department of State: Although trials are public, the law provides also for secret trials when there is a national security concern. Civil society members faced difficulties in gaining access to high-profile public cases, which the government often declared secret. During the year the government conducted some politically motivated court cases behind closed doors. For example, authorities reviewed behind closed doors Zaid Saidov’s cassation request, appealing the December 2013 verdict that sentenced him to 26 years’ imprisonment. In May a court denied the cassation request. [Source: “Country Reports on Human Rights Practices for 2014: Tajikistan,” Bureau of Democracy, Human Rights and Labor, U.S. Department of State *]
Civil cases are heard in general civil courts, economic courts, and military courts. Judges may order monetary compensation for victims in criminal cases. No separate juvenile justice system exists, although there were some courts that provide a separate room for children linked to the courtroom by video camera. *\
Trial Procedures in Tajikistan
According to the U.S. Department of State: “Although the law provides for an independent judiciary, the executive branch exerted pressure on prosecutors and judges. Corruption and inefficiency were significant problems. Defendants legally are afforded a presumption of innocence, but they did not enjoy it. The courts found nearly all defendants guilty. During the first six months of the year, there were 14 acquittals in 4,588 cases, of which eight were fully acquitted, and the remaining six received partial acquittals and were convicted of lesser charges. No life sentences were imposed during the first half of the year. A judge who issues verdicts presided over trials. [Source: “Country Reports on Human Rights Practices for 2014: Tajikistan,” Bureau of Democracy, Human Rights and Labor, U.S. Department of State *]
There is no trial by jury. Courts allowed defendants generally to consult with an attorney in a timely manner during trials but often denied defendants the right to an attorney during the pretrial and investigatory periods. For example, with the exception of a single confidential meeting with his lawyer in June 2013, a court denied Zaid Saidov access to counsel from his arrest until the start of the trial in September 2013. The government provided attorneys at public expense if requested, but defendants and civil society complained that the government sometimes appointed attorneys as a method to deny defendants’ access to the legal counsel of their choice. Defendants and private attorneys said government-appointed attorneys often provided a poor and counterproductive defense. A number of local and international NGOs provided free legal counsel to defendants. *\
Defendants may present witnesses and evidence at trial with the consent of the judge. Defendants and attorneys have the right to review all government evidence, confront and question witnesses, and present evidence and testimony. No groups are barred from testifying, and in principle all testimony receives equal consideration. Courts, however, generally gave prosecutorial testimony far greater consideration than defense testimony. In Zaid Saidov’s 2013 closed trial, his lawyer reported that the trial included numerous procedural violations and that the judge did not allow Saidov to mount a complete defense. The judge reportedly denied more than 50 trial motions on evidentiary issues raised by the defense. The law extends the rights of defendants in trial procedures to all citizens, and it provides for the right to appeal. *\
Security Forces in Tajikistan
When Tajikistan was part of the Soviet Union, the republic's Committee for State Security (KGB) was an integral part of the Soviet-wide KGB. Neither the administration nor the majority of personnel were Tajik. When Tajikistan became independent, the organization was renamed the Committee of National Security and a Tajik, Alimjon Solehboyev, was put in charge. In 1995 the committee received full cabinet status as the Ministry of Security. [Source: Library of Congress, March 1996 *]
Preservation of internal security was impossible during the civil war, whose concomitant disorder promoted the activities of numerous illegal groups. Because of Tajikistan's location, the international narcotics trade found these conditions especially inviting in the early and mid-1990s. *
According to the U.S. Department of State: “ The Ministry of Internal Affairs, Drug Control Agency (DCA), Agency on State Financial Control and the Fight Against Corruption (Anticorruption Agency), State Committee for National Security (GKNB), State Tax Committee, and Customs Service share civilian law enforcement responsibilities. The Ministry of Internal Affairs primarily is responsible for public order and controls the police. The DCA, Anticorruption Agency, and State Tax Committee have mandates to investigate specific crimes, and they report to the president. The GKNB has responsibility for intelligence, controls the Border Service, and investigates cases linked to alleged extremist political or religious activity, trafficking in persons, and politically sensitive cases. The Customs Service reports directly to the president. The Prosecutor General’s Office oversees the criminal investigations that these agencies conduct. [Source: “Country Reports on Human Rights Practices for 2014: Tajikistan,” Bureau of Democracy, Human Rights and Labor, U.S. Department of State *]
Agency responsibilities overlap significantly, and law enforcement organizations defer to the GKNB. Law enforcement agencies were not effective in investigating organized criminal gangs, because the gangs maintained high-level connections with government officials and security agencies. A tacit understanding within law enforcement communities that certain individuals were untouchable prevented investigations from starting. *\
Police in Tajikistan
About 30,000 personnel, 1,000 of whom are women, are on active duty in the police force, which is under the jurisdiction of the Ministry of Interior. Another 30,000 are classified as reserves. Because of the weakness of border forces, uniformed police are a backup security force for the frontiers. Police corruption and brutality are widespread; police have been implicated in many instances of human rights violations and involvement with criminal groups. [Source: Library of Congress, January 2007]
Police powers are divided between the forces of the Ministry of Internal Affairs and the Ministry of Security. The two most significant characteristics of the current system are the failure to observe the laws that are on the books in political cases and the penetration of the current regime by criminal elements. [Source: Library of Congress, March 1996]
According to the OSAC: Police do not perform the “protect and serve” function that American citizens expect from their police agencies. The primary mission of the various police agencies is to guarantee the security of the state. There are reliable reports of extortion and bribery in interactions between citizens and police. Police are unable to respond to a crime in progress. Lack of resources, low salaries, and inadequate training contribute to high corruption and a lack of professionalism among law enforcement agencies. [Source: “Tajikistan 2015 Crime and Safety Report,” Overseas Security Advisory Council (OSAC), Bureau of Diplomatic Security, U.S. Department of State]
In the early 2000s, police were only paid $17 a month. Saltanat Berdikeeva wrote in the China and Eurasia Forum Quarterly: “ The police, particularly in Tajikistan and Kyrgyzstan, are largely demoralized, under-funded and undertrained. In the environment of corruption and lack of the rule of law in these Central Asian countries, sufficient training and funding may not be enough to raise police competency. [Source: Saltanat Berdikeeva, China and Eurasia Forum Quarterly, Volume 7, No. 2 (2009) p. 75-100, Central Asia-Caucasus Institute & Silk Road Studies]
Tajikistan Police Forcibly Shaving Muslims
In April 2015, Catherine Putz wrote in The Diplomat, “A pair of Tajik policemen have reportedly been reprimanded for their role in a spate of recent forced beard shavings in northern Sughd region. The country has been in headlines in recent weeks for what is seen by some as a tightening of state control on the practice of Islam. The beard shaving rebuke in Sughd came after locals complained to authorities about the incidents, according to Deputy Interior Minister Ikrom Umarzoda in an interview with Radio Free Europe/Radio Liberty. “We have ordered regional police departments to talk to local residents about extremism, but have never called on them to work with people through force and pressure,” Umarzoda told Radio Free Europe. [Source: Catherine Putz, The Diplomat, April 29, 2015 =]
“Among the anecdotes that have surfaced is one from a man named Rustem Gulov, reported by the AFP to be a well-known blogger. Gulov penned an open letter to Rahmon in which he recounted being nabbed by police in Khujand, the capital of Sughd, and forcibly shaved. “Judging by the hair in the room,” he said “I estimate they shaved the beards of approximately 200-250 people before me.” Gulov noted that officers told him having a beard was against “state policy.” AFP says that a spokesman for the interior ministry denied this claim, commenting instead that officers were “exceeding their remit” in forcibly shaving men. He did, however, confirm that “police could approach young bearded men to ensure ‘that they take care of themselves and observe personal hygiene.’” =
“It seems, also, that the state is not the only entity praying on Tajikistan’s Muslims. Eurasianet’s David Trilling reported last week that: Someone is profiting from Tajikistan’s official Islamophobia, peddling expensive permits purporting to allow observant Muslims to wear a beard or hijab – fashions that are officially discouraged. The permits, adorned with an official-looking stamp, allegedly go for 250 somoni (about $40) each.” =
Prisons and Detention Centers in Tajikistan
According to the U.S. Department of State: “ Physical Conditions: The government operated 10 prisons, including one for women, and 12 pretrial detention facilities. Exact conditions in the prisons remained unknown, but detainees and inmates described harsh and life-threatening prison conditions, including extreme overcrowding and unsanitary conditions. Disease and hunger were serious problems. UN agencies reported that infection rates of tuberculosis and HIV in prisons were significant and the quality of medical treatment was poor. It was not known if potable water was available. The Ministry of Internal Affairs’ facilities for juvenile boys were generally clean, and a local NGO provided access to a social worker for those held there. Men and women were held separately either in segregated parts of the same facility or in different facilities, but juvenile boys were often held with men. There were 61 juvenile male prisoners and two female juvenile prisoners in the penal system. [Source: “Country Reports on Human Rights Practices for 2014: Tajikistan,” Bureau of Democracy, Human Rights and Labor, U.S. Department of State *]
Administration: The criminal procedure code provides for fines, suspended sentences, house arrest, and community service as alternatives to imprisonment for nonviolent offenders. There were no known cases of prisoners submitting formal complaints regarding conditions. A governmental Office of the Ombudsman exists, and its ombudsman visited prisons but resolved fewer than 2 percent of complaints filed. There were no ombudsmen specifically mandated to monitor prison conditions. It was unknown if prisoners had access to religious observance. *\
Independent Monitoring: The Ministry of Justice continued to restrict access to prisons or detention facilities for representatives of the international community. In December 2013 an association of local NGOs, the Coalition Against Torture, concluded a closed institution monitoring agreement with the ombudsman and the Ministry of Internal Affairs. The Coalition Against Torture and the ombudsman successfully conducted planned visits of closed institutions beginning in February, although officials denied Coalition Against Torture monitors access during an unannounced monitoring visit. The International Committee of the Red Cross (ICRC) continued to lack access due to the absence of a prison access agreement with the government. Negotiations stalled following the government’s refusal to accept the ICRC’s standard conditions for prison visits. *\
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Text Sources: New York Times, Washington Post, Los Angeles Times, Times of London, Lonely Planet Guides, Library of Congress, U.S. government, Compton’s Encyclopedia, The Guardian, National Geographic, Smithsonian magazine, The New Yorker, Time, Newsweek, Reuters, AP, AFP, Wall Street Journal, The Atlantic Monthly, The Economist, Foreign Policy, Wikipedia, BBC, CNN, and various books, websites and other publications.
Last updated April 2016