Turkmenistan: Enforced Disappearances in Prisons; Prison Conditions and Torture; Cooperation with International Human Rights Mechanisms

Statement by the Centre for the Development of Democracy and Human Rights for the pre-sessional meeting in advance of the 3d cycle of the Universal Periodic Review of Turkmenistan

This statement[1] has been prepared in advance of the 3d cycle of the Universal Periodic Review of Turkmenistan by the Centre for the Development of Democracy and Human Rights with support of other members of the Prove They Are Alive! campaign, including the Freedom Files Analytical Centre, Crude Accountability, “Memorial” Human Rights Centre, Norwegian Helsinki Committee, Human Rights Watch, and civic activists inside Turkmenistan working discreetly and at a high risk. The Prove They Are Alive! campaign was established in 2013 by the Turkmen Civic Solidarity Group and works to protect the rights of detainees serving long-term sentences in Turkmen prisons who, since their sentences have been held incommunicado, and to halt the practice of enforced disappearances in Turkmenistan´s prisons.[2]

The statement[3] focuses on implementation of recommendations accepted by Turkmenistan at the 2d cycle of the UPR in 2013, suggests new recommendations, and covers three areas of concern:

• enforced disappearances in prisons;
• prison conditions and torture;
• cooperation with international human rights mechanisms.

 

ENFORCED DISAPPEARANCES IN PRISONS

During the 2d cycle of the UPR in 2013, Turkmenistan accepted several recommendations related to incommunicado detention, in particular, to “abolish incommunicado detention, investigate death in custody incidents and prosecute those responsible…” (Canada), “fully implement the rights of convicts serving long-term imprisonment to communicate with their lawyers and their relatives, and to have access to health care (Germany); and “to ratify the Convention for the Protection of All Persons from Enforced Disappearance” (Uruguay and Argentina). However, Turkmenistan refused to accept with no explanation several important recommendations in this field, such as “inform relatives and the public about the whereabouts of all persons who have been under arrest and whose fate is currently unknown (Germany); “release all prisoners of conscience and political prisoners (Australia, Czech Republic, Norway, Slovenia); “release all political prisoners, including Gulgeldy Annaniazov, and account for those prisoners whose fate is unknown (Canada).[4]

While Turkmenistan is notorious for its repressive policies and numerous human rights violations, enforced disappearances of prisoners is the most acute. The beginning of the problem dates back to the early 2000s, when the government started to incarcerate people for long prison terms without any contact with the outside world. The crisis of enforced disappearances that started 16 years ago has continued during all these years and has a systemic character. It is a well-documented crime whose scale and urgency continues to grow: “Prove They Are Alive!” documented 66 cases when it was launched in 2013; the number of verified cases grew to 88 by September 2016 and to 113[5] by now. An estimated number of the disappeared is in the range of 150-200. Excluding conflict-related disappearances, this is the largest number of enforced disappearances in a country in the Eurasian space (Western and Central Europe and the former Soviet Union). For some of these people, incommunicado detention has lasted for almost 16 years. Close to 30 cases of deaths of the disappeared in custody have been documented, including 10 deaths in the last 3 years. The real number of deaths among the victims of disappearances is likely to be higher, closer to 50.

The largest group of victims (62 documented cases) are those convicted of an alleged attempt at life of then President of Turkmenistan, Saparmurat Niyazov, in November 2002. These people were arrested almost immediately after the failed coup attempt without proper trials, along with many family members and friends. Their trials were swift, closed and full of procedural violations. After the trials, the People´s Council, a body composed of representatives of the central and local authorities, adopted a law “On Traitors of the Motherland”[6] that stipulated life imprisonment, a penalty which was not foreseen by the Turkmen Criminal Code and was applied retroactively on seven individuals. Among the most prominent members of this group are the former Minister of Foreign Affairs, the former speaker of parliament, the former ambassador to the OSCE, and the former head of the state television company. They were sentenced to prison terms from 20 years to a life sentence. Nobody has seen them since their arrests or trials.

The second group (25 documented cases) includes former high-level officials charged with economic crimes and abuse of power who were perceived by authorities as “threats” due to their political influence or reputation in the society. Among them are the former deputy Prime Minister, several ministers, the former head of the State Border Service, and the former Head of the Committee of National Security. They were convicted to sentences of up to 25 years and also disappeared without a trace. Incommunicado detention of this group started in spring 2002 and continued until at least 2007, already under the new President. Their fate clearly demonstrates the ruthlessness of the Turkmen authorities in dealing with such “threats”.

A third group (23 documented cases but likely many more cases) includes people accused of Islamic extremism and sentenced to prison terms of up to 25 years. Disappearances of this group started five years ago, and the number of cases is quickly growing. Most recently, at least 11 documented cases happened in 2017, demonstrating that the government continues to perpetrate the crime of enforced disappearance.

At least three civic activists make the fourth group, the most recent case happening in 2016.

The general features of the victims of enforced disappearances in Turkmen prisons are:

• There is no verifiable information about their whereabouts and condition since their arrest or trial – except a few cases when the authorities returned the bodies of deceased prisoners to their families.[7]
• None of them has had any contact with their relatives, and their families have received no information about their health or whereabouts since they were imprisoned.
• None of them has been seen by legal representation, external medical experts, or international monitoring organizations, including the International Red Cross.

Accepting five years ago the UPR recommendation “to fully implement the rights of persons serving long prison sentences according to international standards”, the government said: “Turkmenistan accepts the recommendation and notes that legislation of Turkmenistan provides convicts serving long prison sentences with the right to communicate with their lawyers, their families and to have access to health care.”

However, in practice the Turkmen authorities have avoided taking any real steps to end this gross violation of human rights and have not implemented relevant recommendations by international bodies, including the UPR recommendations it accepted. None of the cases of disappearances that had existed before 2013 has been ended – no one released, no information provided to families, no contact with the outside world, no visits by lawyers, doctors, or international monitors. Only death in custody has been the end of a forced disappearance for more than a dozen of people since then, and the number of deaths is accelerating.

Moreover, the crime continues: after the second cycle of UPR in 2013, at least 19 new victims have been subjected to full isolation in direct violation of the country’s obligations under international and domestic law. Thus, enforced disappearances cannot be seen as only a matter of the past. They are widely practiced by the current leadership.

The government refuses to recognise the problem and prevents any investigation. Relatives of the victims of disappearances are subjected to systematic pressure, including travel bans and threats. International humanitarian organisations are denied access to prisoners whose names are on the lists of the disappeared.

In the last three years, the situation has deteriorated further. Responses from Turkmenistan to intergovernmental bodies and other states on the problem of disappearances have become increasingly empty and often are simply absent. In its replies to the lists of issues by the UN Committee against Torture and the UN Human Rights Committee in 2016 as well as during review of the implementation of CAT and ICCRP at sessions of these treaty bodies in November 2016 and March 2017, respectively, the government of Turkmenistan ignored almost all the questions concerning the disappeared. The few replies to communications from the UN Working Group on Enforced and Involuntary Disappearances have been evasive and provided incorrect information.

Turkmen authorities are not making any progress on this subject in the framework of its cooperation with the European Union, including at the annual Human Rights Dialogues.

In March 2017, the International Committee of Red Cross withdrew from negotiations on cooperation with Turkmenistan, citing unwillingness of the authorities to accept standard ICRC requirements for prison visits.

Promises of President Berdymukhamedov to Chancellor Angela Merkel made during his visit to Berlin in 2016 to cooperate on organising prison visits by diplomats have been again limited to a couple of “potemkin village” visits to freshly painted colonies with no contact with people on the list of the disappeared.

As a further proof of their refusal to comply with international obligations and their non-implementation of the accepted UPR recommendation, the Turkmen authorities have failed to provide any response to the UN Human Rights Committee on its decision of October 2014 on an individual complaint on the case of former Deputy Prime Minister and Foreign Minister Boris Shikhmuradov.[8] The Committee acknowledged that Shikhmuradov is a victim of enforced disappearance and of a number of other human rights violations[9] and ruled that Turkmenistan is obliged to provide him and his family with an effective remedy[10] as well as to prevent similar violations. Turkmenistan should have provided a substantive reply by 7 November 2015, which it has not yet done.[11]

The pace of deaths of people held incommunicado is increasing. Testimonies of former prisoners and of people who saw the bodies of the deceased when they were returned to the families indicate that the disappeared had been subjected to torture and ill-treatment.

In 2018-20, the prison terms of at least 14 people on the list of the disappeared are scheduled to end. Most of them are hopefully still alive. There is a high risk that new prison terms will be added on trumped-up charges to keep them incarcerated and prevent information about prison conditions and torture from getting out. Such practice is widely used in Turkmenistan. If stronger pressure is applied, including in May during the UPR, there are chances to save these individuals’ lives.

The very existence of a category of prisoners who have disappeared and the ease with which anyone can fall into this category is a source of fear and is an insurmountable obstacle to social progress, public initiative, and freedom of expression. The continuation of this practice is a serious barrier to the development of the country and is used by the authorities not only to repress those whom they see as a threat to their unrestrained rule but also to intimidate all of the society and prevent any sentiment for reform within the state apparatus. This is the main reason behind the continuation of this heinous crime in Turkmenistan and the lack of any meaningful cooperation with the international community on this issue.

 

PRISON CONDITIONS AND TORTURE

In the framework of UPR in 2013, Turkmenistan accepted all recommendations regarding prevention of torture and prison conditions. There were 18 of them, including elimination of torture, investigation of allegations of torture, bringing perpetrators of torture to justice, establishing independent national oversight mechanism of places of detention, allowing visits to prisons by national and international NGOs, ICRC, and the UN special procedures, and ratifying OPCAT.[12]

However, none of this has happened, while there are credible reports of widespread torture and ill-treatment in detention places, including of suspects during investigation. The situation of the disappeared is particularly serious: having no contacts with lawyers, these people are outside the protection of the law.

Most of the disappeared are held in the maximum-security prison of Ovadan Depe. Located 50 kilometers northwest of Ashgabat, little has been known to date about this prison as no international monitors have been allowed inside. “Prove They Are Alive!” campaign was able to uncover gross violations of inmates’ rights, including many accounts of torture, appalling living conditions and corruption.[13] Much of the information about the conditions there was obtained from a Turkmen dissident Akmuhammed Bayhanov and former political prisoner and renowned horse breeder Geldy Kyarizov.[14] They described the living conditions in Ovadan Depe to be a form of torture itself. The cells were completely isolated, so that the inmates could not see anything outside. Vocal communication between cells was strictly forbidden. Bayhanov lived in a cell with 11 other inmates, but heard that the so-called Novemberists, convicted on charges of participation in the alleged coup attempt in November 2002, were held in an especially guarded block of the prison, in 2- and 4-person cells or in solitary confinement. Their cells had covered up windows, and they could do nothing except yell to let others know of their existence – and they were often beaten for doing so. The only alternative way to get a message out was to give a bribe of up to 100 USD per message, and often even this was not possible.

Temperatures in the Karakum desert can spike to +50 degrees Centigrade in the summer, and drop to -20 in the winter, with wide fluctuations from day- to nighttime. There is no air conditioning in the prison, heating during the winter was reported to often not function, and windows without glass and concrete walls provided no insulation. Bayhanov also spoke of the severe mosquito problem. Food was scarce and of poor quality. Water inside the cells was filthy. The toilet was inside the cell without any privacy for the inmates.

In addition to the living conditions, torture is widespread. “Novemberists” were reported to have been tortured with long needles, beatings, and other cruel methods as well as subjected to the application of medical substances. Beatings by the prison guards are a regular occurrence, sometimes as a mass occurrence, sometimes as an “initiation” of new inmates, and other times at a whim or an order from above. Sources describe the use of dogs, batons, and subsequent loss of consciousness, damage to the kidneys, and the inability to walk. Punishment cells called “kartsers” (cylindrical dark solitary confinement cells) are also used as a means of torture. The miniscule amounts of food and water, combined with mosquito infestations and extreme temperatures made the stays in the kartsers a psychologically and physically impossible form of torture. There have been numerous reports and rumors of hunchback cells in Ovadan Depe, which are 1.5 meters tall, requiring inmates to be permanently hunched.

In the few cases were bodies of disappeared prisoners were returned to the families, eyewitnesses reported that their bodies showed extreme signs of starvation. In December 2015, the authorities released to the family the body of Yolly Gurbanmuradov,[15] former Deputy Prime Minister of Turkmenistan, who died in prison after 10 years in complete isolation. According to eyewitnesses of his funeral, his body weighed less than 50 kilograms, whereas at the time of arrest, he weighed more than 120 kilograms. On June 24, 2017, the authorities handed over to the family the body of Aziz Gafurov who died in Ovadan Depe. He was charged in “Islamic extremism” and convicted in 2016 to a long prison term. According to eyewitness reports, his “body was blue from beating, unbelievably skinny and droopy.”[16]

In March 2017, the International Committee of Red Cross withdrew from negotiations on cooperation with Turkmenistan, citing unwillingness of the authorities to accept standard ICRC requirements for prison visits.

In December 2016, the UN Committee against Torture said in its Concluding Observations on Turkmenistan[17] that it was “seriously concerned about consistent allegations of widespread torture and ill-treatment, including severe beatings, of persons deprived of their liberty…”, “gravely concerned about continued reports about impunity for acts of torture since no cases of torture have been recorded or examined by the State party’s courts during either the previous or the current reporting periods.” The Committee expressed regret that none of its recommendations from the review five years ago had been implemented and that the government failed “to provide information to the Committee indicating that it has effectively investigated a number of widely publicized reports of torture”.

Systemic problems include absence of a mechanism of reviewing complaints on torture. It is not surprising that the government claims that there has been not a single complaint on torture submitted in the last five years. People are too terrified to complain, despite of numerous allegations of widespread torture and ill-treatment in detention. Allegations of torture, including cases of death in custody, allegedly resulting from torture and ill-treatment, are not investigated. Perpetrators are not brought to justice; impunity prevails. Victims of torture do not receive reparation, including rehabilitation and compensation.

Despite of the promises made five years ago, Turkmenistan has not ratified OPCAT and has not established an NPM. A national independent system that effectively and regularly monitors and inspects all places of detention, does not exist: the national inspection commission is attached to the Cabinet of Ministers.

International monitors, including ICRC and the UN special procedures, are not given access to detention facilities. Rare visits by diplomats are limited to the same two colonies with no contact with the inmates.

 

COOPERATION WITH INTERNATIONAL HUMAN RIGHTS MECHANISMS

Turkmenistan accepted all 21 recommendations regarding cooperation with international human rights mechanisms during the 2d cycle of UPR in 2013. They included recommendations to engage in a constructive dialogue with the UN monitoring bodies, issue standing invitations to all special procedures of the Human Rights Council, and accept as soon as possible the outstanding visit requests by special procedures, including by drawing a concrete timeline or agreeing with OHCHR on a plan for visits.[18]

Regretfully, during these five years none of these recommendations has been implemented. The only relatively positive development has been more regular and timely submission of periodic reports to the UN treaty bodies and written replies to the lists of issues. However, the content of periodic reports and replies to the list of issues has been below adequate. Full of lengthy declarations about the existing and new legislative provisions, adoption of new human rights plans and establishment of new institutions, they completely lack coverage of the real situation on the ground with implementation of international human rights obligations and domestic laws. Description of practice is amazingly missing in these reports. When, on rare occasions, information on the implementation is provided, it is often incorrect or misleading. For example, on the issue of establishing of an independent oversight mechanism of monitoring of places of detention, the government reports about a commission attached to the Cabinet of Ministers. When reporting to the Committee against Torture about investigation of complaints of torture, the government said that no complaints had been received in the reporting period, with no explanation.

The quality of interactive dialogue of Turkmen delegations with members of treaty bodies during review at the committees’ sessions is very low. Again, the focus is made entirely on legislation while most of the questions about implementation and concrete cases are simply ignored.

Similarly, the government in its replies to the lists of issues by the Human Rights Committee and the Committee against Torture in 2016 simply ignored many questions, including those about outstanding cases of violations. This practice of ignoring “inconvenient” questions is striking. Both of these treaty bodies used very strong language in their concluding observations, expressing strong concern about non-implementation of their earlier recommendations. Their members were clearly irritated by having to repeat the same recommendations as five years ago.

In a similar fashion, having recognised the competence of the Human Rights Committee to review individual complaints, the Turkmen authorities have failed to implement its views on individual cases. In the most outstanding case, Turkmenistan has not implemented the decision of the Committee from October 2014 on an individual complaint on the case of the former Foreign Minister Boris Shikhmuradov.[19] The Committee acknowledged that Shikhmuradov is a victim of enforced disappearance and a number of other human rights violations and ruled that Turkmenistan is obliged to provide him and his family with an effective remedy as well as to prevent similar violations. Turkmenistan should have provided a substantive reply by 7 November 2015, which it has not yet done.[20] No reasons given. When asked about the reasons of non-implementation of this decision at bilateral meetings or multilateral fora, no reply is provided.

Poor record of the state’s implementation of decisions of special procedures on individual cases is quite illustrative. The UN Working Group on Arbitrary Detention issued several decisions on imprisonment of civic activists and journalists, including Annakurban Amanklychev and Sapardurdy Khajiev in 2010,[21] Gulgeldy Annaniyazov in 2013,[22] and Saparmamed Nepeskuliev in 2015,[23] finding their detention arbitrary and in violation of international human rights norms, and called for their release. The government has failed to implement decisions on Annaniyazov and Nepeskuliev. They are all still in custody and are held incommunicado. Annaniyazov’s case is also reviewed by UN WGEID.

Just half a year ago, in December 2017, the WGAD released a new opinion on a major group case, according to which the deprivation of liberty of 18 people, arrested in autumn 2016 and convicted in a trial in February 2017 for prison terms from 12.5 to 25 years, was arbitrary and in contravention of international law.[24] The Working Group requested that the government release them immediately and accord them reparations, conduct investigation into the violation of their rights, and take other steps. While the government has until the end of May to reply to the Group, these people remain imprisoned and at least half of them is believed to be held incommunicado in Ovadan Depe.

Last year, the UN Working Group on Enforced and Involuntary Disappearances sent communications to the Turkmen government on two cases of alleged disappearance in prisons. In its replies, the government provided incomplete or incorrect information. In response to communication on the case of Tirkish Tyrmyev, in June 2017 the government provided information about the prison he had been kept prior to his death and the reasons of his death but ignored questions that were at the heart of the communication – reasons for his full isolation and conditions in custody. Replying on May 2017 to the Group’s request for information about the whereabouts and reasons for incommunicado detention of Annamurad Atdaev, the government ignored the question about his isolation in custody and provided wrong information about his place of detention. His relatives visited this colony twice, before the reply by the government and after it, and in both cases were told by the administration that he had been kept there just for two days in January and was transferred to the high security Ovadan Depe prison where inmates are kept in full isolation.

Despite promises made during UPR five years ago, Turkmenistan continues to deny access to the country to the UN Human Rights Council special procedures. Again no reasons given. This is an outstanding manifestation of non-cooperation. Altogether, twelve mandate holders have requested visits to the country and are still waiting, many of them for a long time.[25] For example, the Special Rapporteur on the independence of judges has been waiting for permission to visit Turkmenistan for more than 20 years.

 

CONCLUSIONS AND RECOMMENDATIONS TO DELEGATIONS

Providing formal reports to the UN treaty bodies which do not address implementation of the human rights obligations, ignoring treaty bodies’ questions, not implementing decisions of the Human Rights Committee and the Working Groups on individual cases, and refusing to accept visits by special procedures is by no means what is expected from a member state of the UN. It is a mere imitation of dialogue, driven by the country’s need in economic cooperation, while massive violations of human rights continue. This “imitation game” is intended to further reinforce the façade which hides a system of continuous and increasing repression, increased authoritarianism and widespread control.

In the previous two UPR cycles, Turkmenistan accepted most of the recommendations. However, in practice it has avoided taking any real steps to end systematic and gross violations and has not implemented relevant recommendations by international bodies, including the accepted UPR recommendations. While several new laws have been adopted, they remain empty declarations, as well as recently adopted national human rights plans. The same applies to the recently established institute of the Ombudsperson. Many laws contain vague provisions and loopholes, allowing arbitrary and often politically motivated application. The country’s human rights record remains dismal and is deteriorating.

During the upcoming UPR on 7 May 2018, it is very important that delegations ask as concrete questions as possible, preventing the government of Turkmenistan from giving general replies. Likewise, recommendations by delegations should be as specific as possible, focusing on the implementation on the ground of the country’s international obligations as well as on outstanding individual cases. The Turkmen delegation should not be allowed to get away again with general declarations and empty promises.
Annex: Suggestions on questions and recommendations to the government of Turkmenistan

 

QUESTIONS ON ENFORCED DISAPPEARANCES

1. According to available information, relatives of persons sentenced to long-term prison terms who have had no contact with them and no information about their whereabouts and conditions since the time of their arrest or trial, in the overwhelming majority of cases are not able to receive this information from government bodies, and their requests for visiting their loved ones in places of detention are turned down. Have the Turkmen public authorities received from families of persons included in the “List of the disappeared in Turkmen prisons” compiled by the Prove They Are Alive! campaign requests to provide information on the health and whereabouts of their relatives in custody and requests to allow family members to visit their relatives in places of detention? If so, what answers were given to the families? For example, what answers were given to members of Rustem Jumaev’s family, in particular to his son, Umed Uldzhabaev? What answers were given to the family of Serdar Rakhimov? What answers were given to members of Annamurad Atdaev’s family, in particular to his wife, Daria Atdayeva? What steps did the government initiate to engage with the families of persons held in incommunicado detention? Please provide the name of the state body and position of any official responsible for communicating with relatives of people held in complete isolation in custody and responding to the inquiries for information and requests for visits.

 

2. Turkmenistan’s Criminal Code, adopted in 2010, and the Penitentiary Code, adopted in 2011 (as well as the Correctional Labor Code which was in force prior to 2011), include norms guaranteeing the rights of all inmates to visits by relatives and lawyers, letters and parcels, regardless of the crimes for which they were convicted and regardless of the incarceration regime determined by the court. In addition, neither the August 2003 amendments to the Criminal Code with respect to the crime of terrorism, nor the Law on Combating Terrorism of 15 August 2003 provide for absolute incommunicado detention of persons convicted of terrorism. However, the government of Turkmenistan claimed the opposite in its documents and oral statements. For example, a letter to the UN Secretary General Kofi Annan dated 26 April 2004 and signed by the Permanent Representative of Turkmenistan to the UN Aksoltan Atayeva contained an attachment with a document issued by the Turkmen Ministry of Foreign Affairs concerning the resolution on the human rights situation in Turkmenistan adopted at the 60th session of the UN Commission on Human Rights. In particular, the document issued by the Turkmen Ministry of Foreign Affairs stated: “In this regard, the Turkmen side notes that Turkmenistan, in pursuance of its international obligations, is prepared to give access to ICRC representatives to persons held in detention facilities, except for criminals convicted of terrorism or of attempts to seize power and change the constitutional system of the country. In accordance with the law and the court’s verdict, access to convicted terrorists is prohibited for five years [emphasis added]. The Turkmen side has repeatedly noted this officially during meetings with representatives of international organizations and with foreign diplomats.” Turkmen officials have made similar statements during contacts at the international level, to justify the absolute isolation from the outside world of more than 100 people serving long-term sentences, including for crimes other than “terrorism or of attempts to seize power and change the constitutional system of the country”. In practice, absolute isolation, including restrictions on contacts with the outside has remained in effect for these people well after the 5-year period indicated by the government. Please explain the legal grounds for holding the persons included in the “List of the disappeared in Turkmen prisons” compiled by the Prove They Are Alive! campaign incommunicado in a high-security prison regime, many of them for more than 15 years, and how does this correspond with Turkmenistan’s international obligations and national legislation?

 

3. Detention conditions for many persons serving long-term sentences, including persons included in the “List of the disappeared in Turkmen prisons” compiled by the Prove They Are Alive! campaign, determined by the respective court verdicts, provides for 3-5 years of incarceration in a prison, followed by a transfer to ordinary penitentiary colonies thereafter. However, according to data from NGOs, dozens of people have not been transferred from prisons to ordinary colonies after the end of the established time and are kept in prisons for many years in full isolation. Please explain why they have not been transferred to ordinary penitentiary colonies after spending 3 to 5 years in prison as determined in their court verdicts, and instead remain held in prison incommunicado? Could you please explain who made the decisions to change the detention conditions that had been determined by a court for these dozens of people? When these decisions were made?

 

4. In the light of Turkmenistan’s recognition of the competence of the UN Human Rights Committee to consider individual complaints, how can you explain Turkmenistan’s failure to comply with the Committee’s decision on the case of Boris Shikhmuradov from October 2014 which recognized him as a victim of enforced disappearance and a number of other human rights violations, and to provide a response to the Committee and Shikhmuradov’s family? When do you plan to implement this decision by the Committee and this obligation under the Covenant?

 

5. Considering that the penalty of life imprisonment did not exist in the Criminal Code at the time, how can you explain sentencing to life imprisonment in December 2002 – January 2003 of seven people among those convicted on charges of involvement in the alleged attempt at the life of then President Niyazov and most of whom disappeared in prisons after their trials? In addition, the penalty of life sentence is absent in the current Criminal Code of 2010.

 

6. In paragraph 5 of the resolution “On declaring certain illegal acts as high treason and on punishment of traitors” of 5 February 2003, introducing life sentence for “traitors of Motherland” which was applied retroactively, the Khalk Maslakhaty (People’s Council) instructed the Prosecutor General’s Office of Turkmenistan, the Ministry of Internal Affairs of Turkmenistan and the Ministry of Justice of Turkmenistan to draft a regulation establishing rules of imprisonment for persons sentenced to life. No information on adoption of this regulation is available in open sources. Could you clarify whether this regulation has been drafted and adopted? If so, please provide the text of the regulation and the list of all other legislative, regulatory and internal acts, stemming from it. Was this regulation published, as stipulated by article 8 of the Constitution which states that “if they are not widely publicized, normative legal acts affecting human and civil rights and freedoms shall be invalid from the moment of their adoption”? If it has been published, when and in what publication did it appear?

 

7. In paragraph 6 of the resolution “On declaring certain illegal acts as high treason…” of 5 February 2003, the Khalk Maslakhaty instructed the Mejlis of Turkmenistan “to amend relevant laws of Turkmenistan pursuant to this Resolution.” Could you inform us on whether any such amendments were adopted (in particular, amendments to the Criminal Code and the Code of Criminal Procedure)? If such amendments were adopted and published, please provide the list of these amendments and the dates of their adoption and official publication.

 

8. The Khalk Maslakhaty was dissolved at its extraordinary meeting on 26 September 2008 but recently was reinstated by the adoption of a constitutional law on 9 October 2017. Please explain the legal status of the Khalk Maslakhaty’s resolution of 5 February 2003 “On declaring certain illegal acts as high treason and on punishment of traitors”. Is it still in effect?

 

9. Article 6 of Turkmenistan’s new Criminal Code of 2010 stipulates that provisions of the Code can be applied retroactively in cases where they provide for milder penalties and less strict detention conditions compared to those imposed before its adoption on persons convicted for the same offences. In such cases, according to Article 6 of the Criminal Code of 2010, prison terms should be shortened and detention conditions should be improved. A number of people included in the “List of the disappeared in Turkmen prisons” should have been released based on these provisions. Could you please inform us whether penalties have been shortened and conditions of detention made milder, according to Article 6 of the Criminal Code of Turkmenistan of 2010, in respect of anyone from among more than 100 persons included in this list? If yes, please provide a list of all persons in respect of whom Article 6 has been applied, including concrete data on the shortening of sentences. If this has not happened, please explain why.

 

10. Deaths in custody of almost 30 individuals from among 113 people sentenced to long-term prisons terms since 2002 and included in the “List of the disappeared in Turkmen prisons” has been documented by the “Prove They Are Alive!” campaign and other NGOs. In recent years, the government has returned the bodies of the deceased to their families but in a number of cases in previous years this was not done. In respect of persons included in the “List of the disappeared in Turkmen prisons” who have died in custody, have all of their families been provided with death certificates and autopsy reports, and were they informed of the causes of their relatives’ deaths? Why in a number of cases, the bodies of the deceased were not given to the families? If the body was not given to the family, were the relatives informed about the place of burial and are they allowed to visit this place?

 

RECOMMENDATIONS ON ENFORCED DISAPPEARANCES

1. Abolish incommunicado detention of prisoners and hold those responsible for enforced disappearances accountable.
2. Provide information to the relatives of the disappeared included in the list published by the “Prove They Are Alive!” campaign about their fate, health, and whereabouts.
3. Fully implement the rights of convicts serving long-term sentences by providing their family members regular visits, delivery of letters and parcels, as well as access of the prisoners to lawyers and health care, in line with the amended Code of Criminal Procedure, the international obligations of Turkmenistan and the recommendations accepted under the 2d cycle of the Universal Periodic Review.
4. If any individual in the list of the disappeared has died, provide family members with the death certificate, the autopsy report, the body, or the location of the remains. Investigate death in custody incidents and prosecute those responsible.
5. Provide international monitoring bodies, including the UN, the ICRC and the OSCE, with a list of all persons held in custody incommunicado, including their whereabouts, the exact duration of their prison terms and expected release date. The list should be accessible to relatives.
6. Allow access to the disappeared by independent monitors such as the ICRC, mandate holders of the UN Special Procedures, and the OSCE/ODIHR.
7. Initiate judicial reviews of all the court cases of the disappeared in light of the 2010 amendments to the Criminal Code, allowing international monitors to observe the proceedings.
8. Implement the UN Human Rights Committee decision on the case of Boris Shikhmuradov.
9. Ratify the International Convention for the Protection of All Persons from Enforced Disappearance, enact domestic legislation based on its provisions and recognize the competence of the UN Committee on Enforced Disappearances.
10. Abolish the 2003 decree of the Halk Maslakhaty (People’s Council) “On High Treason,” which introduced imprisonment for life as punishment for treason, as it contradicts the 2010 Criminal Code.

RECOMMENDATIONS ON PRISON CONDITIONS AND TORTURE

1. Establish an independent, accessible and effective complaints mechanism for all places of detention. Facilitate the submission of complaints by victims of torture and ill-treatment, including by obtaining medical evidence in support of their allegations. Ensure in practice that complainants in all places of detention are protected against ill-treatment or intimidation as a consequence of a complaint made or any evidence given.
2. Ensure that the legislative prohibition of forced confessions and the inadmissibility of evidence procured by torture are effectively enforced in practice by law enforcement officers and by judges.
3. Ensure that all allegations of torture and ill-treatment by public officials, including the police and prison staff, are investigated promptly, effectively and impartially by an independent mechanism with no institutional or hierarchical connection to the investigators and the alleged perpetrators.
4. Ensure independent forensic examinations in all cases of death in custody, provide autopsy reports to the family members of the deceased and, if requested, permit them to commission independent autopsies.
5. Promptly, thoroughly and impartially investigate all incidents of death in custody, make the results of those investigations available to the public, prosecute those responsible for violations of the Convention against Torture resulting in such deaths and punish them accordingly, if convicted.
6. Take immediate steps to eliminate impunity for perpetrators of torture and ill-treatment; bring them to justice and, when they are convicted, impose appropriate sentences.
7. Ensure access of victims of torture to full reparation, including rehabilitation and adequate compensation.
8. Ensure that solitary confinement remains an exceptional measure of limited duration.
9. Ensure that persons deprived of liberty are treated with humanity and respect for the inherent dignity of the human person and, to this end, intensify its efforts to bring the conditions of detention in places of deprivation of liberty into line with ICCPR and the United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules). Ensure that detainees are provided with adequate material and hygienic conditions, including bathing and toilet facilities, an adequate quantity and quality of food, adequate space for each prisoner, natural and artificial lighting, proper ventilation, health care, outdoor activities and family visits.
10. Establish a national system that independently, effectively and regularly monitors and inspects all places of detention without prior notice and that is able to meet in private with detainees and receive complaints.
11. Ensure access to all detention facilities, including the high security Ovadan Depe prison, for independent observers such as the ICRC, relevant mandate holders of UN Special Procedures, and other authoritative international bodies such as the OSCE/ODIHR.
12. Reinforce its efforts to sign of a memorandum of understanding with ICRC based on its standard rules of visits to places of detention.
13. Strengthen cooperation with the United Nations human rights mechanisms by permitting visits as soon as possible by special procedure mandate holders who have requested them, in particular the Special Rapporteur on torture and the Working Group on Arbitrary detention, in conformity with the terms of reference for fact-finding missions by special rapporteurs and special representatives.
14. Ratify the Optional Protocol to the Convention against Torture (OPCAT).

RECOMMENDATIONS ON COOPERATION WITH INTERNATIONAL HUMAN RIGHTS MECHANISMS

1. Improve the quality of its dialogue and cooperation with the United Nations human rights treaty bodies. In particular, provide timely and substantive periodic reports, focusing on actual implementation of the relevant human rights obligations in practice and on implementation of recommendations by treaty bodies in the previous cycle of review. Engage with treaty bodies constructively during review at their sessions and while replying to their lists of issues; in particular, respond to all questions and provide full and accurate information on individual cases. Submit information on implementation of the most outstanding recommendations in the framework of the follow up procedure.

 

2. Implement decisions of the Human Rights Committee on individual complaints and provide timely replies to the Committee and the applicants. In particular, implement without any further delay the Committee’s views on the case of Boris Shikhmuradov from October 2014.

 

3. Cooperate effectively with the UN Working Group on Enforced and Involuntary Disappearances; in particular, provide full and accurate information to the Group’s requests of information in its communications.

 

4. Cooperate effectively with the UN Working Group on Arbitrary Detention; in particular, implement without delay its decisions on the cases of Guldeldy Annaniyazov from August 2013, Saparmamed Nepeskuliev from December 2015, and on the group of 18 men from December 2017.

 

5. Extend a standing invitation to all Special Procedures of the UN Human Rights Council.

 

6. Facilitate, without any further delay, visits to the country of those special procedures mandate holders whose requests are pending, starting with the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment.

Annex: Recommendations to Turkmenistan at the 2^nd cycle of the UPR in 2013, relevant to the issues covered by the statement 

Enforced disappearances in prisons

Accepted recommendations

113.7. Accede to … the International Convention for the Protection of All Persons from Enforced Disappearance (CPED) (Uruguay);

113.17. Continue its efforts to ratify CPED… (Argentina);

113.72. Fully implement the rights of convicts serving long-term imprisonment to communicate with their lawyers and their relatives, and to have access to health care (Germany);

113.60. Abolish incommunicado detention, investigate death in custody incidents and prosecute those responsible… (Canada);

 

Recommendations that were not accepted

114.2. Inform relatives and the public about the whereabouts of all persons who have been under arrest and whose fate is currently unknown (Germany);

114.3. Release all prisoners of conscience (Slovenia); Release of all prisoners of conscience (Norway);

114.4 Release all political prisoners, including Gulgeldy Annaniazov, and account for those prisoners whose fate is unknown (Canada);

114.5. Take steps to release all political prisoners… (Australia);

114.6. Immediately release all human rights defenders and political prisoners (Czech Republic);

 

Prison conditions and torture – all recommendations accepted

113.2. Sign and ratify OP-CAT and establish a national mechanism to prevent torture, independent of the authorities (France);

113.4. Ratify OP-CAT to establish a national independent mechanism for visiting the detention centres (Costa Rica);

113.58. Eliminate torture, accede to OP-CAT and establish its national preventive mechanism accordingly (Czech Republic);

113.6. Ratify … OP-CAT (Romania);

113.1. Consider ratifying the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (OP-CAT) (Mexico);

113.17. Continue its efforts to ratify … the Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (OP-CAT) (Argentina);

113.3. Ratify OP-CAT and incorporate it into national legislation (Switzerland);

113.5. Accede to/ratify OP – CAT (Estonia); Accede to OP-CAT (Montenegro);

113.61. Establish a national system that independently and regularly monitors and inspects all places of detention (Poland);

113.60. …allow frequent visits by recognized international humanitarian organizations to all detention places, and establish an independent monitoring system for detention facilities (Canada);

113.62. Allow visits by international humanitarian organizations to all detention places (Poland);

113.63. Develop cooperation with the ICRC, allowing it access to all places where persons are or may be deprived of their liberty (France);

113.64. Allow, in a flexible general manner, the visit of independent organizations and national and international NGO s to the detention centres (Spain);

113.65. Grant independent national and international monitoring organizations full access to all detention facilities (Sweden);

113.66. Grant full access to all prison facilities in the country to the representatives of ICRC and other international mechanisms, such as the Special Rapporteurs on torture, and human rights defenders, and the Working Group on Arbitrary Detention in accordance with their request (Netherlands);

113.69. Investigate and, as appropriate, prosecute officials suspected of committing torture or other violations of human rights and punish those who are convicted (United States of America);

113.70. Conduct independent investigations into allegations of torture as well as violations of the rights of human rights defenders and independent journalists, including attacks against their lives and their freedom of movement, and take the necessary protection measures (Spain);

 112.57. Improve detention conditions in their prisons, especially when it comes to prisons for women (Spain);

 

Cooperation with international human rights mechanisms – all recommendations accepted

112.23. Carry out its engagement, in a constructive dialogue, with the United Nations human rights monitoring bodies (Iran (Islamic Republic of))

113.16. … extend a standing invitation to the United Nations Special Procedures (Guatemala);

113.30. Consider the possibility of extending a standing invitation to all special procedures of the Human Rights Council (Uruguay);

113.31. Consider issuing a standing invitation to special rapporteurs to visit Turkmenistan (State of Palestine);

113.32. Issue a standing invitation for the special procedures, in particular, granting access for the requested visits (Slovakia);

113.33. Adopt a standing invitation to human rights special procedures (Brazil);

113.34. Issue a standing invitation to the special procedures of the Human Rights Council (Costa Rica);

113.35. Issue a standing invitation to special procedures (Iraq);

113.36. Extend a standing invitation to all thematic special procedures (Montenegro);

113.37. Respond favourably to requests for visits from Special Rapporteurs which have not yet been answered (France);

113.38. Respond to requests for visits of special procedures’ mandate holders by agreeing with OHCHR on a plan for visits as soon as possible (Switzerland);

113.39. Draw a timeline for realizing the visits of the Special Rapporteurs who so requested to the country (Hungary);

113.40. Accept as soon as possible the outstanding visit requests from the special rapporteurs (Spain);

113.41. Permit visits from all 10 United Nations special procedures who have requested a visit (Ireland);

113.44. Continue to cooperate with the United Nations Human Rights Council Special Procedures, use opportunities for having country visits for the benefit of human rights situation improvement (Kyrgyzstan);

113.45. Step up its cooperation with the special procedures of the Human Rights Council by responding positively to the pending visit requests and eventually consider extending a standing invitation to all the special procedures mandate holders of the Human Rights Council (Latvia);

113.46. Continue to cooperate with the United Nations Human Rights special procedures (Tajikistan);

113.47. Further improve its cooperation with the special rapporteurs of the United Nations (Azerbaijan);

113.42. Allow the United Nations special procedures – especially the Working Group on Arbitrary Detention and the Special Rapporteur on torture – to visit the country (Italy);

113.43. Accept the requested visits from the Working Group on Arbitrary Detention and the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment (Mexico);

114.5. …facilitate the requested visits of the United Nations Special Rapporteur on torture and the Working Group on Arbitrary Detention (Australia).

^[1] Oral statement at the UPR pre-sessional meeting will be shorter due to the time limit.

^[2] For more information, see http://provetheyarealive.org.

[3] The statement is based on the submission by the Prove They Are Alive! campaign for the UPR process in October 2017, updated in March 2018.

^[4] See Annex for the list of all relevant recommendations, accepted by Turkmenistan at the 2^d UPR cycle in 2013.

[5] The Disappeared in Turkmenistan. Report by the “Prove They Are Alive!” Campaign, February 2018. http://provetheyarealive.org/updated-list-of-the-disappeared

[6] For the Russian text of the law, see http://provetheyarealive.org/the-decree-of-the-peoples-council-halk-maslakhati-on-declaring-as-treason-separate-illegal-actions-as-well-as-penalties-for-traitors-of-the-nation/

[7] The International Community Should Take Urgent Steps to End Enforced Disappearances in Turkmenistan. Statement by the Prove They Are Alive! campaign. 30 August 2017. http://provetheyarealive.org/the-international-community-should-take-urgent-steps-to-end-enforced-disappearances-in-turkmenistan/

[8] http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G15/006/17/PDF/G1500617.pdf?OpenElement

[9] These include the right to life (art. 6.1 of ICCPR), protection from torture (art. 7), protection from arbitrary detention (art. 9), the right to a fair trial (art. 14.1 and 14.5), and punishment by a penalty heavier than the one that was applicable at the time when the criminal offence was committed (art. 15.1).

[10] “In accordance with article 2, paragraph 3, of the Covenant, the State party is under an obligation to provide Mr. Shikhmuradov and the author [of the complaint] with an effective remedy including by (a) releasing him immediately; (b) conducting a … investigation into his detention, disappearance and unfair trial; (c) providing…the author with detailed information on the results of the investigation; (d) in the event that Mr. Shikhmuradov is deceased, handing over his remains to the author; (e) prosecuting, trying and, if convicted, punishing those responsible for the violations committed; and (f) providing adequate compensation to the author and Mr. Shikhmuradov for the violations suffered.”

[11] The government of Turkmenistan Should Implement the Decision of the UN Human Rights Committee on the Case of Boris Shikhmuradov without Any Further Delay. Statement by the Prove They Are Alive! Campaign, 9 November 2017. http://provetheyarealive.org/decision-on-boris-shikhmuradov/

[12] See annex for the full list of relevant recommendations in the 2d UPR cycle in 2013.

[13] The Ovadan Depe Prison: Medieval Torture in Modern Turkmenistan, report by Prove They Are Alive! campaign, September 2014. http://provetheyarealive.org/wp-content/uploads/2014/09/FInal-O-D-Report-September-2014-compressed.pdf

[14] Five Months in the Secret Ovadan-Depe Prison, As Remembered by Geldy Kyarizov and Chronicled by Vitaly Ponomarev. Human Rights Centre “Memorial” and the Prove They Are Alive! Campaign. January 2016 http://provetheyarealive.org/wp-content/uploads/2017/06/Five_Months_in_Ovan_Depe.pdf

[15] P. 42, List of the Disappeared in Turkmenistan Prisons, “Prove They Are Alive!”, February 2018 http://provetheyarealive.org/updated-list-of-the-disappeared

[16] P. 34, List of the Disappeared in Turkmenistan Prisons, “Prove They Are Alive!”, February 2018 http://provetheyarealive.org/updated-list-of-the-disappeared

[17] http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CAT/C/TKM/CO/2&Lang=En

[18] See annex for the full list of relevant recommendations in the 2d UPR cycle in 2013.

[19] http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G15/006/17/PDF/G1500617.pdf?OpenElement

[20] The government of Turkmenistan Should Implement the Decision of the UN Human Rights Committee on the Case of Boris Shikhmuradov without Any Further Delay. Statement by the Prove They Are Alive! Campaign, 9 November 2017. http://provetheyarealive.org/decision-on-boris-shikhmuradov/

[21] A/HRC/16/47 /Add.1 http://www.freedom-now.org/wp-content/uploads/2010/11/Amanklychev-and-Khadzhiev-Opionion-of-the-WGAD-11.2.10.pdf and http://www2.ohchr.org/english/bodies/hrcouncil/docs/16session/A.HRC.16.47.Add.1_AEV.pdf

[22] A/HRC/WGAD/2013/22 https://documents-dds-ny.un.org/doc/UNDOC/GEN/G14/130/15/PDF/G1413015.pdf?OpenElement

[23] A/HRC/WGAD/2015/40 https://documents-dds-ny.un.org/doc/UNDOC/GEN/G16/057/81/PDF/G1605781.pdf?OpenElement and http://www.ohchr.org/Documents/Issues/Detention/Opinions2015AUV/Opinion%202015%2040_Turkmenistan_Nepeskuliev_AUV%20final.pdf

[24] http://www.ohchr.org/Documents/Issues/Detention/Opinions/Session80/A_HRC_WGAD_2017_70_EN.docx

[25] http://spinternet.ohchr.org/_Layouts/SpecialProceduresInternet/ViewCountryVisits.aspx?Lang=en&country=TKM