CAT/C/TJK/CO/2
(a)
The moratorium on the death penalty declared in 2004 and the establishment
of a Working Group in April 2010 to consider the removal of the death penalty from the
Criminal Code and the possibility of ratifying the Second Optional Protocol to the
International Covenant on Civil and Political Rights;
(b)
The visit undertaken by the Special Rapporteur on torture and other cruel,
inhuman or degrading treatment or punishment in May 2012.
C.
Principal subjects of concern and recommendations
Definition of and sanctions for torture
6.
While the Committee welcomes the incorporation of article 143-1 into the Criminal
Code to bring the definition of torture fully in line with article 1 the Convention, it
expresses concern that the sanctions envisaged of five years imprisonment or less for firsttime offenders of torture are not commensurate with the gravity of the crime (arts. 1 and 4).
The Committee recommends that the State party amend article 143-1 of the Criminal
Code to ensure that sanctions for the offence of torture reflect its grave nature, as
required by article 4 of the Convention.
Amnesty Law
7.
The Committee is deeply concerned that the 2011 Law on Amnesty grants a rather
wide discretion to prosecutorial bodies to commute, reduce or suspend sentences of persons
convicted of torture, including the case of three police officers convicted for their
involvement in the death in custody of Ismoil Bachajonov (art. 2).
The State party should ensure that the Law on Amnesty contain clear provisions
stipulating that no person convicted for the crime of torture will be entitled to benefit
from amnesties, and that such prohibition is strictly complied with in practice.
Fundamental legal safeguards
8.
The Committee takes note of the procedural safeguards introduced in the 2010 Code
of Criminal Procedure (CPC), including the registration of detainees within three hours of
arrival at the police station (art.94.1), the right to have a lawyer (arts.22.1 and.49.2), and the
right not to be detained for more than 72 hours from the moment of arrest (art.92.3).
However, the Committee expresses concern that the lack of clarity as to when the person is
considered to be detained under this law (art. 91.1), leaves detainees without basic legal
safeguards for the period between arrest and official acknowledgement of detention. It has
been reported that, in practice and in the majority of cases, detainees are not afforded the
rights of timely access to a lawyer and an independent doctor, notification of family
members, and other legal guarantees to ensure their protection from torture. In particular,
the Committee is concerned by numerous allegations regarding the failure of police
officials to keep accurate records of all periods of deprivation of liberty; to register suspects
within three hours of arrival at the police station; to adhere to the 72-hour time limit for
releasing or transferring suspects from a police station to pretrial detention facilities; and to
notify family members of transfers of detainees from one place of deprivation of liberty to
another. Furthermore, it is concerned that article 111-1 of the CPC allows judges to
authorize pretrial detention solely based on the gravity of the alleged crime committed, and
that it can be extended up to 18 months (art. 2).
The Committee urges the State party to take prompt and effective measures to ensure,
in law and in practice, that all detainees are afforded all legal safeguards from the
very outset of their apprehension. In particular, the State party should:
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