Torture Claims Mar Trial in Tajik North

The case of a man allegedly tortured in detention in Tajikistan has highlighted the enduring difficulty of securing a fair hearing for those who report mistreatment, experts say. 

Anti-torture legislation has been revised, but is not always implemented effectively, and police often resist attempts to investigate allegations of abuse, so that perpetrators are able to act with impunity.

For more than a year, the family and defence team of 33-year-old Ilhom Ismonov, from the town of Kanibadam in the northern Soghd region, have been seeking a proper investigation of allegations that he was tortured into signing a confession.

Ismonov is one of 53 defendants in an ongoing trial in the Soghd regional centre Khujand, which started in July. The case concerns a suicide bombing at the local offices of police's organised crime unit in September 2010. Three police officers and the attacker died in the explosion.

Ismonov is accused of assisting the alleged Islamic extremists said to have commissioned the attack.

His wife Zarina Najmutdinova has been active in raising the alarm about the case from the start, and was able to engage Amnesty International's attention.

She disputes the official story that her husband was detained by police on November 10 last year, charged and then handed over to the national security agency two days later for further investigations.

Instead, she says, he went missing a week earlier, on November 3. Police who arrived to search the house the next day confirmed that he was in custody. Denied access when she visited the detention centre on November 5, Najmutdinova filed complaints against the police and spoke to the local prosecution service.

The next day, she was told he had "escaped" from the heavily-guarded unit. Only after a prosecution officer appeared in person at the detention unit later that day did it emerge that Ismonov was in fact there. Najmutdinova was finally allowed to see him, and observed injuries to his hands and neck.

"I sat facing him and saw burn marks on his hands, the kind you can get from an electric shock. I got an electric shock as a child so I know what marks it leaves," she said. "I also saw cuts on his neck."

Police and prosecutors flatly deny that Ismonov was tortured. A letter from the Soghd regional prosecutor's office said "claims that he was subjected to torture and was not provided with a lawyer have not been confirmed". The interior ministry sent a similar letter.

Najmutdinova says the prosecutor based its findings on a medical assessment carried out a month after her husband was first held in custody, by which time signs of torture had diminished.

Judges also failed to address the allegations adequately, she said. At his remand hearing on November 13, 2010, Ismonov told the judge that he had been tortured, including by electrocution and by being doused in hot and cold water. The judge nevertheless ordered custody to continue.

As the trial got under way on September 16, 2011, Ismonov repeated his allegations to presiding judge Dodojon Gadoiboev. The defendant denied the charges against him and said he had confessed under torture.

According to Ismonov's lawyer Tamara Yusupova, the judge has not addressed these concerns.

As well as torture allegations themselves, questions remain about the manner of Ismonov's detention. There is a clear week between Ismonov's arrival in police custody and his appearance on official records of detention, during which time he had no access to a defence lawyer, whom he only met at the remand hearing nine days after his detention. The alleged abuse relates to this "missing" period, allowing officials to argue that he was not tortured while formally in detention.

Revisions to the legislation on how criminal cases are processed, passed in 2009, make it clear that in legal terms, detention begins immediately a person is taken into custody, as does the right to see a lawyer.

In the past, a looser definition could mean that the "moment of detention" occurred when an official report was filled out, leaving a gap of a day or more when the suspect was being questioned but was not a "detainee". (See Praise for Tajikistan's New Penal Code on the changes.)

Human rights experts say mistreatment and torture occur most frequently during the first 72 hours of custody. In a statement on the Ismonov case in September, Amnesty International said police are often accused of torturing or beating detainees to extract confessions, incriminating evidence, or money.

Amnesty said that despite the improvements to the law, detainees continue to be held incommunicado, their lawyers are refused access, remand hearings do not always take place within the prescribed 72 hours, and judges often ignore claims of torture and actual evidence of injury presented in the courtroom.

In the Ismonov case, prosecutors and police deny he was held unlawfully at any time. The closest they came to acknowledge any wrongdoing was a reference to police officers "having unjustifiably delayed information-gathering". In its letter, the prosecution service said "he was not temporarily detained and was not held illegally". For its part, the interior ministry acknowledged that the police filed a report late, for which officers would face unspecified disciplinary measures.

When IWPR approached Judge Gadoiboev about the case, he too indicated that the alleged torture fell outside the recorded start of the accused man's detention.

"Ismonov has indeed raised the issue of torture, but he is talking about the period before a criminal case was launched. At that time, it was Ismonov's illegal detention that was in question, and the regional prosecutor's office has investigated this and presented its findings," he said.

Asked whether his court would address the torture allegations, Judge Gadoiboev said it would look into the matter in due course, and would rule on it once documentary evidence had been examined.

"As of now, the [judicial] process is ongoing and it would be premature to talk about the outcome," he added.

Despite being the main witness to the alleged torture, Najmutdinova has not been asked to appear in the current trial. She has learned that prosecutors argued this was unnecessary, as the allegations had already been investigated and disproved by their institution.

Noting that the defence had asked for her to be called as a witness, she said, "I am still waiting to find out when I will be called in."

Ismonov's case has won international attention due to his wife's persistence, but Amnesty International says other defendants in the same case have also told the judge about alleged torture and ill-treatment.

Tajikistan is bound by numerous laws banning both the use of torture, and the submission of evidence gained through it. It is a signatory to the United Nations Convention against Torture, which says that "any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings". The 2009 criminal procedures code similarly states that evidence obtained "by way of force, pressure, causing suffering, inhuman treatment or other illegal methods" is invalid and must not form part of a prosecution case.

While the code was largely welcomed when it was passed, legal experts noted that it still failed to set out a clear definition of torture. As in older legislation, the provisions covering mistreatment of detainees use terms such as the catch-all "exceeding one's authority", while specific physical abuse comes under the Russian word "istyazat", which is somewhat softer than "pytka", the standard equivalent for "torture" as defined under international law. (See Tajikistan Needs Tougher Torture Definition.)

Sergei Romanov, director of the Independent Centre for the Protection of Human Rights, told IWPR that a bill introducing a standard definition of "torture" in line with international standards is currently before the Tajik parliament.

Romanov noted that since last year, a law designed to protect trial participants has offered special safeguards for torture victims and their relatives, who can write to Tajikistan's human rights ombudsman. An agreement signed this year allows the ombudsman's office to take part in investigations of torture allegations, which were previously the exclusive domain of the prosecution service.

A legal expert in Dushanbe told IWPR that the main problem was not the quality of legislation, but the fact that it was so commonly flouted.

"In Tajikistan, laws are frequently simply ignored, or interpreted in favour of the law-enforcement agencies accused of torture," the expert, who did not want to be named, said.

He also confirmed the institutional obstacles set out by Amnesty International, which says that "sometimes personal and structural links between prosecutors and police undermine the impartiality of prosecutors" when the latter are supposed to be investigating abuse.

"It's possible to get results by attracting the attention of the public and of international organisations, but it's still hard to see any flagship cases," he said.

In a report to the UN Human Rights Council in Geneva on October 3, Tajik justice minister Bakhtiyor Khudoyorov said that in the previous 20 months, 16 out of 66 allegations of ill-treatment or torture had been confirmed. Twelve cases had gone to court, but the majority of the offences committed were not serious, he said.

He also said that Tajikistan was working towards ratifying the Optional Protocol to the UN Convention Against Torture, which would open the way to external scrutiny of places of detention.

Human rights defenders say the official statistics are a drop in the ocean when it comes to actual cases of torture, most of which are never investigated because they are covered up, or because victims fear that the repercussions will be even worse. Najmutdinova's dogged refusal to give up remains the exception.