CAT/C/TJK/CO/3
Sanctions for acts of torture
13.
The Committee is concerned that the Criminal Code of the State party continues to
provide for inappropriately low penalties for torture; that as a result of these low sanctions,
the Criminal Procedure Code allows officials to terminate investigations into torture
allegations “on the basis of repentance, conciliation with the victim”, or “change of
circumstances”; that the crime of torture is presently subject to a statute of limitations; and
that despite the fact that the most recent amnesty adopted by the State party excluded
perpetrators of torture as defined in Criminal Code article 143 (1) from eligibility,
individuals prosecuted for acts amounting to torture under other articles of the Criminal
Code were eligible for and received amnesties. The Committee notes the information
provided by the State party that a proposed amendment to the Criminal Code, currently
under consideration, would increase the maximum penalty for torture under article 143 (1)
from five to eight years’ imprisonment (arts. 2 and 4).
14.
The State party should take measures to ensure, as set out in the Committee’s
general comment No. 2 (2007) on the implementation of article 2, that the penalties for
torture in its laws reflect the grave nature of the crime; that the crime of torture is not
subject to any statute of limitations; and that perpetrators of torture are ineligible for
amnesty under the Amnesty Act. The State party should also take measures to ensure
that officials are not permitted under the Code of Criminal Procedure to terminate
investigations into the crime of torture because the perpetrator has repented or
reconciled with the victim. Furthermore, the State party should take measures to
ensure that perpetrators of acts amounting to torture or ill-treatment are charged
under article 143 (1) of the Criminal Code, and that they are not charged solely with
other crimes which carry lower maximum penalties and which give eligibility for
amnesty and are subject to statutes of limitations.
Human rights Ombudsman
15.
While noting that amendments to the Commissioner for Human Rights
(Ombudsman) Act in 2012 allow for unimpeded access to places of deprivation of liberty,
the Committee is concerned that the Ombudsman may not have, in practice, access to
temporary pretrial detention facilities under the authority of the State Committee on
National Security, to facilities run by the Ministry of Internal Affairs department on
organized crime, or to facilities run by the Anti-Drug Agency, or to other places in which
persons can be deprived of their liberty (and where they may be held in de facto
incommunicado detention). The Committee is also concerned that the Office of the
Ombudsman was given “B” status accreditation by the Global Alliance of National Human
Rights Institutions in March 2012 for lack of full compliance with the principles relating to
the status of national institutions for the promotion and protection of human rights (the
Paris Principles), including insufficient guarantees of independence and inadequate funding
(art. 2).
16.
The State party should enable the Commissioner for Human Rights
(Ombudsman) to access all places in which persons are deprived of their liberty,
throughout the country, and to make his reports publicly available on a regular basis,
including through a website. The independence and efficiency of the Office of the
Ombudsman should be strengthened by ensuring adequate financial and staffing
resources to enable it to carry out its mandate effectively and independently, in
compliance with the principles relating to the status of national institutions for the
promotion and protection of human rights (the Paris Principles), with pluralism of
staff and their selection by a clear, transparent and participatory process.
Fundamental legal safeguards
17.
While noting the legal amendments introduced in 2016, the Committee is concerned
that detained persons do not enjoy, in practice, all the fundamental legal safeguards from
the very outset of their deprivation of liberty, in particular after arrest by the police, and that
domestic legislation does not provide the same level of protection for those detained on
administrative charges as for those detained on criminal charges. It is also concerned at the
practice still perpetuated by operative and investigative officers of informally inviting
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