Development of the National Preventive Mechanism against Torture: the Experience of Uzbekistan
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As part of the implementation of Uzbekistan’s Action Strategy, which marked the beginning of a new stage of democratic transformations and modernization of the country, international human rights standards are being actively implemented, the outcomes of which are recognized by international experts.
As early as in 2017, Zeid Ra’ad al-Hussein, who visited the country as UN High Commissioner for Human Rights, noted that, ‘The volume of constructive human-rights related proposals, plans and new legislation that has emerged since President Mirziyoyev took up office is remarkable.’ ‘Human rights – all categories of human rights – figure very prominently across the five sets of priorities laid out in the over-arching policy document guiding these proposed reforms – the President’s 2017-21 Action Strategy. Anyone wishing to understand what underlies the changes starting to take place in Uzbekistan – and what lies behind my visit – should look closely at the Action Strategy.’
Today, Uzbekistan is a party to the ten core international UN human rights instruments, including the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (hereinafter – the Convention against Torture), and consistently taking measures to implement provisions thereof into national legislation.
Taking into consideration the fact that progress in the sphere of human rights, and in particular, in the prevention of torture, is one of the indicators that demonstrate the level of maturity of democracy in the country, the issues of compliance of the relevant national legislation with international standards are of prime importance in the course of ongoing reforms for Uzbekistan, which is building a law-governed democratic state.
Based on the obligation to take effective measures to prevent acts of torture and ill-treatment arising from the Convention against Torture, Uzbekistan, along with the adoption of a set of measures in this area, is making appropriate changes to the legislation.
In view of this, let us consider the latest, core, in our opinion, changes in the national legislation relating to the prevention of torture and other cruel, inhuman or degrading treatment or punishment.
Firstly, amendments have been made to article 235 of the Criminal Code, aimed at enhancing liability for the use of torture, expanding the range of possible victims and those who shall be held liable.
It should be noted that the previous version of article 235 of the Criminal Code
restricted the prohibited practice of torture to the actions of law enforcement officials and did not cover acts by ‘other persons acting in an official capacity’, including those ‘acts that result from the instigation, consent or acquiescence of a public official’. In other words, the earlier version of the article 235 of the Criminal Code did not contain all the elements of article 1 of the Convention against Torture, to which the UN Committee against Torture has repeatedly drawn its attention. Now, the new version of this article of the Criminal Code provides for the above elements of the Convention.
Secondly, articles 9, 84, 87, 97, 105, 106 of the Criminal Executive Code have been amended and supplemented with norms aimed at better safeguarding the rights of convicts, including securing their rights to exercise, psychological counseling, safe working conditions, rest, leave, labour remuneration, access to health care, vocational training, etc.
Thirdly, the Administrative Liability Code has been supplemented by new Article 1974, which provides for administrative responsibility for obstructing the legal activities of Parliamentary Ombudsman (the Commissioner of the Oliy Majlis of the Republic of Uzbekistan for Human Rights).
In particular, the article provides for liability for the officials’ failure to perform their duties to the Commissioner, creating obstacles to his/her work, providing him/her with deliberately false information, the officials’ failure to consider appeals, petitions or their failure to meet the time limits for consideration thereof without a good reason.
Fourthly, important amendments have been made to the Law ‘On the Commissioner of the Oliy Majlis of the Republic of Uzbekistan for Human Rights (Ombudsman)’ (hereinafter - the Law), according to which:
– correctional facilities, places of detention and special reception centres are covered by the one concept of ‘places of detention’;
– a sector to facilitate the Commissioner’s activities on the prevention of torture and ill-treatment is created within the structure of the Commissioner’s Secretariat;
– the powers of the Commissioner in this area are prescribed in detail. In particular, the Law has been supplemented by new article 209, according to which the Commissioner may take measures to prevent torture and other ill-treatment through regular visits to places of detention.
Also, in accordance with article 209 of the Law, the Commissioner shall create an expert group to facilitate his/her activities. The expert group shall be composed of representatives of NGOs with professional and practical knowledge in the field of jurisprudence, medicine, psychology, pedagogy, and other areas. The Commissioner shall determine the tasks for the members of the expert group and issue special orders to allow them to freely visit places of detention and other facilities from which persons are not permitted to leave at will.
Here it should be noted that the Law establishes the main elements of the preventive mechanism - regular visits to places of detention.
Although Uzbekistan is not a party to the Optional Protocol to the Convention against Torture (hereinafter – the Protocol), it can be said, however, that, taking into consideration its provisions, as well as within the framework of fulfilling its international obligations and the provisions of the Convention against Torture, the country has created its ‘national preventive mechanism’.
Based on the provisions of the Protocol, a ‘national preventive mechanism’ (hereinafter – NPM) means one or several visiting bodies established, designated or maintained at the domestic level in order for the prevention of torture and other inhuman treatment. Article 3 of the Protocol obligates States parties to set up, designate or maintain such bodies.
The rationale of establishing an NPM was substantiated in detail by the UN Special Rapporteur on torture (A/61/259). According to him, the rationale ‘is based on experience that torture and ill-treatment usually take place in isolated places of detention, where those who practise torture feel confident that they are outside the reach of effective monitoring and accountability.’ ‘Accordingly, the only way of breaking this vicious cycle is to expose places of detention to public scrutiny and to make the entire system in which police, security and intelligence officials operate more transparent and accountable to external monitoring.’
The Law, as already stated above, establishes a new preventive mechanism, which grants the Commissioner the right to take measures to prevent torture and ill-treatment through regular visits to places of detention, as well as to take similar measures at other facilities from which persons are not permitted to leave at will.
In addition, important steps have been taken recently to strengthen the national system for the protection of human rights, in particular:
– the National Strategy of the Republic of Uzbekistan on Human Rights has been adopted;
– in order to implement the National Strategy and further expand the powers of the Parliament in exercising parliamentary control over the implementation of Uzbekistan’s international human rights obligations, the Parliamentary Commission on Compliance with International Human Rights Obligations has been established;
– the position of the Commissioner for the Rights of the Child has been established;
– measures have been taken to improve the status of the National Human Rights Centre of the Republic of Uzbekistan;
In addition, it should be separately emphasized that Uzbekistan has been elected to UN Human Rights Council.
To date, in order to further implement international norms and improve national legislation and preventive practice in this area, the Parliamentary Commission on Compliance with International Human Rights Obligations, together with the competent state authorities, carries out the following:
First. According to the Protocol, certain categories of institutions inherently fall within the scope of the definition ‘place of detention’ and could be stated in a non-exhaustive definition in national law for purposes of clarity. For example, such institutions can include psychiatric institutions, juvenile detention centers, places of administrative detention, etc.
In this regard, the issue of including in the legislation a number of the main institutions, which the NPM can regularly visit, is being considered.
Second. In accordance with the Convention against Torture, the concepts of ‘torture’ and ‘cruel, inhuman or degrading treatment or punishment’ are differentiated depending on the form, purpose of committing and the level of severity of the suffering inflicted on the victim by this act.
In view of this, the issue of differentiating the concepts of ‘torture’ and ‘cruel, inhuman or degrading treatment or punishment’ and establishing in the legislation of their clear definitions and measures of liability for these acts is being considered.
Third. As part of the implementation of the provisions of the Convention against Torture, the quality of information and educational activities on human rights is being improved, that is, work is underway to inform about the essence and content of laws on the prohibition of torture and ill-treatment. It is planned to include the subject of the prohibition of torture and ill-treatment in training programs not only for law enforcement officials, but also for medical, pedagogical personnel and other employees who may be involved in the treatment of persons in places of detention.
Fourth. The issue of ratification of the Optional Protocol to the Convention against Torture is being considered, and in view of this, it is planned to invite the UN Special Rapporteur on Torture to Uzbekistan.
Thus, it can be noted that active, targeted and systemic measures are being taken in Uzbekistan to further improve the national preventive mechanism aimed at better prevention and averting of torture and attempts of cruel, inhuman or degrading treatment or punishment.
It should be admitted that, of course, there are still a number of unresolved problems in this area in Uzbekistan today. However, there is political will to move forward with human rights reforms.
In conclusion, we would like to quote the words of the speech by the President of Uzbekistan Shavkat Mirziyoyev at the 46th session of the UN Human Rights Council stating that Uzbekistan ‘shall continue to strictly suppress all forms of torture, inhuman or degrading treatment’, and ‘as a member of the Human Rights Council shall defend and actively promote the universal principles and norms of international human rights law.’
Doniyor Turaev, Deputy Director of the Legislation and Parliamentary Research Institute under the Oliy Majlis