Unofficial courtesy translation from Russian
Written replies of the Government of Uzbekistan
to the List of issues adopted by the UN Committee Against Torture at its 50th session on 6-31 May 2013 in relation to the Fourth periodic report of the Republic of Uzbekistan on the implementation of the Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment
(CAT/C/UZB/4)
Specific information on the implementation of articles 1 to 16 of the Convention, including with regard to the Committee’s previous recommendations
Replies to the List of issues adopted by the UN Committee against Torture are based on the information provided by the Office of Prosecutor General, the Ministry of Internal Affairs, the Ministry of Justice, the Ministry of Labour and Social Welfare, the Ministry of Health, the General-Directorate of Execution of Punishments of the Ministry of Internal Affairs, the Supreme Court, the Committee for Religious Affairs of the Cabinet of Ministers, the Women’s Committee, the Academy of Ministry of Internal Affairs of the Republic of Uzbekistan and etc.
Article 1 and 4
1.Please provide information on any steps taken or envisaged to adopt a definition of torture in conformity with article 1 of the Convention, in particular to further amend article 235 of the Criminal Code[1] (CAT/C/UZB/4, para. 46), to ensure that persons who act in an official capacity or with the consent or acquiescence of a public official are prosecuted for torture and not merely charged with “aiding and abetting” such practices under articles 28 and 235 of the Criminal Code, as previously recommended by the Committee (CAT/C/UZB/CO/3, para. 5; CAT/C/UZB/4, paras. 48-49).[2]
Reply: In accordance with the UN Convention against Torture and National Plan of Actions, the Law of the Republic of Uzbekistan dated
30 August 2003 enacted the new edition of the Article 235 of the Criminal Code (Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment). The new wording of the article defines the concept of torture and other cruel, inhuman or degrading treatment in terms that adequately reflect the Article 1 of the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
Persons conducting an initial inquiry or pretrial investigation, prosecutors or other employees of law enforcement agencies or penal institutions may be classed as perpetrators of the offence in question.
If the offence is committed by a person who is not an employee of a law enforcement agency, but at the instigation of or with the consent or acquiescence of a person conducting an initial inquiry or pretrial investigation or other employee of a law enforcement agency, his or her action will be categorized as aiding and abetting the use of torture or other cruel, inhuman or degrading treatment or punishment in the form of provision of the means for the commission of an offence under articles 28 and 235 of the Criminal Code.
It should be noted, if the offense in this category is committed not by perpetrator of the offence (for example, a teacher, a private person), his or her actions would be classified under the relevant articles of the Criminal Code.
Analysis of the content of Article 235 of the Criminal Code indicates that its wording is as close as possible to the wording of Article 1 of the UN Convention against Torture in terms of definition of “torture and other cruel, inhuman or degrading treatment or punishment”. The difference is that the effect of Article 1 of the UN Convention against Torture is not limited to certain perpetrators of the offence, whereas Article 235 of the Criminal Code defines persons conducting an initial inquiry or pretrial investigation, prosecutors or other employees of law enforcement agencies or penal institutions as perpetrators of the offence, that reflects the characteristics of the system of combating torture in Uzbekistan.
At present, in the framework of further implementing the international law in national legislation, as well as introducing advanced foreign experience, the issue of bringing the Article 235 of the Criminal Code in full conformity with the provisions of Article 1 of the UN Convention against Torture is being discussed.
2.Please provide updated statistical information on the number of cases during the reporting period in which individuals were charged with violating articles 28 and 235 of the Criminal Code, indicating the number of cases in which defendants were convicted and the details of any criminal sentences imposed.
Reply: During the period from 2010 to June 2013 prosecutors offices instituted 23 criminal cases in respect of 45 law enforcement officers (7 in 2010, 10 in 2011, 5 in 2012 and 1 in 6 months of 2013) under article 235 of the Criminal Code for use of torture and other cruel, inhuman or degrading treatment or punishment. All the accused in criminal cases were convicted by courts and punished in accordance with the national legislation.
Within the indicated period, courts reviewed six criminal cases against 15 persons under article 235 of the Criminal Code (use of torture and other cruel, inhuman or degrading treatment or punishment). In five criminal cases, 11 accused persons were convicted. One criminal case against four persons was terminated by an Act of Amnesty.
Prosecutors offices did not institute or investigate criminal cases under article 28 and 235 of the Criminal Code during the period indicated.
3.Please indicate whether steps taken during the reporting period to ensure that punishments for acts of torture are commensurate with the gravity of the crime.[3] Please indicate whether the crime of torture is subject to any statute of limitations. Please also indicate whether the State party’s legislation provides that no exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification for torture.
Reply: In the Republic of Uzbekistan all punishments are commensurate with the gravity of the crime. During 6 months in 2013 Criminal courts reviewed 3 criminal cases (instituted and investigated in 2012) against 6 persons, associated with the use of torture and other cruel, inhuman or degrading treatment or punishment (Article 235 of the Criminal Code).
All 6 persons who committed the crime were men. 2 criminal cases against three persons were reviewed by Tashkent Criminal courts, and 1 case against three persons – Syrdarya Regional Court.
Analysis of the sentencing demonstrated that of the six people involved in this category of offenses: Act of Amnesty was applied to 3 of them, 2 persons were sentenced to imprisonment, 1 person declared wanted.
These criminal cases were not sent for revision by appeal, cassation and supervisory instance courts.
There was no single acquittal sentence in cases concerned with torture and other cruel, inhuman or degrading treatment or punishment.
Article 64 of the Criminal Code stipulates the procedure for exempting a person from liability for crimes as a result of expiration of the statute of limitations. A person shall be discharged from criminal liability, if the following periods have been expired from the day of commission of a crime:
-three years – for commission of a crime of a minor social danger
(para. 1 Article 235 of the Criminal Code);
-five years – for commission of a less serious crime (para. 2 Article 235 of the Criminal Code);
-ten years – for commission of a serious crime (para. 3 Article 235 of the Criminal Code);
-fifteen years – for commission of especially serious crime, except for persons, who committed crimes against peace and humanity, where terms of liability are not applied.
A term of conviction shall be calculated from a day of commission of a crime until a moment of coming into an effect of a sentence.
A term of conviction shall be suspended, if a person, who committed a crime and charged with criminal liability, evades from investigation and trial. A term of conviction shall be resumed from a moment of apprehension of a person or surrender.
A term of conviction shall be interrupted, if before expiration of the terms established by Article 64 a person, who committed a serious or especially serious crime, commits a new intentional crime. In such instances, calculation of term of conviction shall start de novo from commission of a new crime. In other instances, if before expiration of a term of conviction a person commits a new crime, this term for each individual crime shall be calculated individually.
A person may not be subject to liability, if twenty-five years have elapsed since a moment of commission of a crime.
An issue of application of term of conviction to a person, who committed a crime punished by a life imprisonment under an Article of the Special Part of the Criminal Code, shall be decided by a court. If a court abstains from imposing a life imprisonment, it shall be commutated to imprisonment.
According to the Article 10 of the Criminal Code “Principle of Inevitability of Penalty” each person, in whose acts availability of corpus delicti has been proven, shall be subject to liability.
4.Please indicate the steps that the State party has taken to abolish the practice of granting amnesties to persons convicted of torture or ill-treatment. Please provide further information on the cases of the 16 individuals who were awarded amnesty despite having been convicted of torture or cruel, inhumane, or degrading treatment and of the cases of the 12 individuals who were released under an amnesty, despite having been sentenced to detention, referred to in the State party’s report (para. 77). Please indicate whether any officials who have received amnesties or pardons remain employed in an official capacity.
Reply: According to Article 68 of the Criminal Code a person, who committed a crime, may be discharged from criminal liability due to an act of amnesty, adopted by the Senate of Oliy Majlis (Parliament) of the Republic of Uzbekistan in accordance with the Article 80 of the Constitution.
An Amnesty Act does not negate the criminal law that stipulates the responsibility for a specific crime, does not annul the court verdict. It only commutates the sentence for prisoners and persons who have committed a crime.
An Amnesty act, allowing the exemption of persons who have committed a crime from criminal responsibility and punishment, commutation of sentence, release of the legal consequences of conviction, is regulated under the criminal, criminal procedure and penal laws.
Amnesty applies only to certain categories of convicted offenders or persons who committed crimes of certain categories. They are exempt from criminal liability or exempt from serving the punishment, or a judicial sentence is reduced.
Amnesty acts are applied to convicted offenders whose behavior while serving their sentence gives reason to believe that they will not commit a new crime. Amnesty does not apply to particularly dangerous repeat offenders and other dangerous criminals.
Amnesty acts stipulate, that certain provisions are not to be applied to persons who have committed crimes in organized groups, who have committed serious crimes, as well as who are recognized to be especially dangerous recidivists.
It should be noted that 16 persons who previously had been amnestied, despite the fact that they have been convicted of torture or cruel, inhuman or degrading treatment, and 12 persons who have been pardoned despite the fact that they were sentenced to imprisonment, were all dismissed from the police.
All law enforcement officers convicted of torture and other cruel inhuman or degrading treatment or punishment were dismissed during the pre-trial investigation and do not work in the law enforcement system after conviction.
Article 2[4]
5.In light of the Committee’s previous concluding observations (para. 6(a)) and as requested by the Committee’s rapporteur for follow-up, please provide updated information on steps the State party has taken to address numerous and consistent reports, including by the Special Rapporteur on torture,[5] that persons detained in Uzbekistan are routinely subjected to torture and ill-treatment.
Reply: It should be noted that accusation of Uzbekistan law enforcement agencies in numerous acts of torture against detainees are unfounded.
Every complaint, including those from detainees, received by the prosecutor’s office, about illegal treatment by law enforcement officials, is thoroughly and comprehensively studied and evaluated in accordance with the national legislation.
In order to ensure a timely response to every alert from citizens on the use of torture in the Interior system, the Order of the Ministry of Internal Affairs No. 334 dated 18 December 2003 established a uniform procedure for registering complaints and allegations of torture and introduced a separate record for each alert on the use of illegal methods of inquiry, investigation, verification of which is taken under special control.
Verification of complaints concerning the use of torture, in accordance with the functional task, is assigned to the specialized units for internal security (special inspections on personnel), with a vertical subordination to the Minister of the Interior.
These units are in fact independent, as they are not involved in crime prevention, detection and investigation of crimes and not in subordination of agencies and departments involved in combating crimes.
It is an established practice to involve public, civil society and, in some cases, foreign experts in the investigation of cases of torture, especially involving the death of a detainee or those that caused public outcry.
Creation of special unit on protection of human rights under the Ministry of Internal Affairs, strengthening the procedures of reviewing the complaints and appeals of citizens, special internal investigations by the internal security of the Ministry of Internal affairs, criminal prosecution of police officers under the Article 235 of the Criminal Code by the prosecutor’s office demonstrate how the law is implemented in practice. The specific statistics for criminal liability under Article 235 of the Criminal Code are a clear proof of this.
On the basis of citizens complaints the following number of criminal cases were instituted under Article 235 of the Criminal Code: in 2002 –
1 case against one person; 2003 – 4 cases against 4 persons; 2004 – 3 cases against 3 persons; 2005 – 3 cases against 5 persons; 2006 – 6 cases against 9 persons; first half of 2007 – 3 cases against 4 persons. A total of
20 criminal cases against 26 persons.
In September 2005 a Division on protection of human rights, relations with international organizations and the public was created under the Department of Legal Support of the Ministry of Internal Affairs. This Division is also authorized to inspect or participate in investigation of complaints and allegations of misconduct by police officers, including the use of torture. The Division has regional representatives in the regional offices.
During a year, employees of the Division are involved in investigation of more than 30 complaints on various issues of violations of human rights in cooperation with the staff of the special inspection on personnel.
New editions of articles 46 and 48 of the Code of Criminal Procedure stipulate that an accused and suspect in committing a crime shall be entitled to exercise the right to a telephone call or message a counsel, or a close relative about the detention and location; to a counsel from the moment of detention or declaring him the resolution on prosecution him as a suspect and to meet him confidentially without limitations in number and duration of meetings, except in cases provided for by part II of the Article 230 of the Criminal Procedure Code; to testify or to refuse to testify and to be informed that his testimony could be used as evidence in the criminal case against him; exercise his right to self defense; make a copy of the materials and documents at his own expense.
The Law “On the detention during the criminal case”, adopted on
29 September 2011 determines the precise terms and conditions of detention of persons detained on suspicion of committing a crime, and those in regards to whom the preventive punishment in the form of detention has been applied.
The Article 18 of the Law contains a complete list of rights of detainees and prisoners, including the right to:
-information about their rights, freedoms and duties, as well as regime in places of detention, rules of conduct, procedure for filing applications, proposals and complaints;
-request a personal meeting with the head of the place of detention or a person authorized by him, as well as officials supervising the places of detention;
-appeal in person or through counsel or legal representative with the requests and complaints concerning the legality and validity of their detention and the violation of their rights, freedoms and legitimate interests;
-correspondence, all means for it: paper and stationery;
-personal security;
-meeting with defense counsel or legal representative, relatives and other persons, etc.
Complaints on actions and decisions of the inquirer or investigator are conveyed by the administration of the detention facility to the chief investigator or prosecutor, and on actions and decisions of the prosecutor to the higher ranking prosecutor, no later than one working day following the submission.
It is prohibited to persecute in any form of the detained and imprisoned for submission of the requests and complaints on violations of their rights, freedoms and legitimate interests.
The legal guarantees of human rights protection from torture are also strengthened in the Law “On operative-search activity” dated 25 December 2012.
According to the mentioned Law, the main task of the operative-search activity is to ensure the protection of the rights, freedoms and legitimate interests of the person, and his security (Article 4). In case of violation by agencies conducting operative-search activity and their employees of the rights, freedoms and legitimate interests of the person they are obliged to take measures for their rehabilitation, compensation for the damage and bring the perpetrators to justice. No one shall be subjected to torture or cruel or humiliating or degrading treatment (Article 7).
The Law stipulates the following bodies responsible for the operative-search activity: offices of Internal Affairs and National Security, Customs and the Department on combating tax and currency crimes, legalization of criminal incomes under Prosecutor General’s Office of the Republic of Uzbekistan (Article 10).
The mentioned authorities shall take all necessary measures to protect the rights, freedoms and legitimate interests of the person, property, legal entities, personal security, and to ensure the safety of life and health of citizens (Article 13). These bodies are prohibited from taking an action (inaction) that endanger the lives and health of citizens, humiliate or demean a person, as well as from using violence, threats, blackmail and other illegal methods of restricting the rights, freedoms and legitimate interests of the person (Article 17).
Decisions of operative-search bodies, action (inaction) of their employees may be appealed to a higher authority in the chain of command, the prosecutor or the court (Article 28).