CASE OF SOLDATENKO v. UKRAINE
Preliminary objection joined to merits and dismissed (non-exhaustion of domestic remedies);Preliminary objections dismissed;Remainder inadmissible;Violation of Art. 3 (in case of extradition to Turkmenistan);Violation of Art. 13;Violation of Art. 5-1;Violation of Art. 5-4
Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Renate Jaeger;Volodymyr Butkevych
5. The applicant was born in 1961 and is currently detained in a penitentiary institution in the Kherson region, awaiting his extradition to Turkmenistan. The applicant’s lawyer claims that the applicant is a stateless person. According to the Government, the applicant is a Turkmen national. The applicant himself does not deny his Turkmen nationality and has not raised the issue of his allegedly stateless status before the Ukrainian authorities. 6. On 7 July 1999 the Turkmen law-enforcement authorities issued a bill of indictment against the applicant for inflicting light and grievous bodily harm on two individuals on 4 June 1999 (the latter, more serious crime is punishable by five to ten years’ imprisonment under the Criminal Code of Turkmenistan). The same day the Turkmen police ordered the applicant’s arrest. This latter decision was approved by the Ashgabat Azatlyksky District Prosecutor on 8 July 1999. 7. On 12 July 1999 a search for the applicant was announced by the police. 8. The applicant left Turkmenistan in October 1999 because of his alleged persecution on ethnic grounds. Since then he has resided in Ukraine. 9. On 4 January 2007 the applicant was apprehended by the police. According to the applicant his relatives were informed that he had been arrested for hooliganism and later they were informed he had been arrested under Article 106 of the Code of Criminal Procedure under an international search warrant. 10. The same day the applicant was informed that he was wanted by the law-enforcement authorities of Turkmenistan. According to the applicant, the police officers persuaded him to refrain from asking for legal assistance under the pretext that all procedural steps in his criminal case would be conducted in the territory of Turkmenistan. 11. The same day the Kherson Police Department received an official request from the Turkmen authorities for the applicant’s provisional arrest under the CIS Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters, 1993. 12. On 8 January 2007 the applicant was allowed to see a lawyer. 13. On 10 January 2007 the applicant was brought by the police before a judge of the Kakhovsky District Court of the Kherson Region, who ordered his detention pending the extradition proceedings against him. The decision, which stated that an appeal could be made under Article 165-2 of the Code of Criminal Procedure, was served immediately. No time-limit was set for his detention. 14. The same day the applicant was questioned by the Gornostaevsky District Prosecutor, to whom he explained, inter alia, that prior to his arrest he had not been aware that he had been wanted by the Turkmen law-enforcement authorities. He further explained that he had signed a waiver of assistance from a lawyer since the police had explained to him that he would not face a trial in Ukraine. 15. On 15 January 2007 the applicant requested the Court to apply Rule 39 of the Rules of Court in his case. On 16 January 2007 the President of the Chamber decided to apply Rule 39, indicating to the Government that it would be desirable in the interests of the parties and the proper conduct of the proceedings not to extradite the applicant to Turkmenistan pending the Court’s decision. 16. On 19 January 2007 the General Prosecutor’s Office of Turkmenistan requested the applicant’s extradition with a view to criminal prosecution for the crimes of inflicting light and grievous bodily harm on two individuals. It further gave assurances that the applicant would be prosecuted only for the crimes indicated in the request, that he would be allowed to leave Turkmenistan after serving his sentence, and that he would not be handed over to a third country without the consent of the Ukrainian authorities. It added that he had never been and would never be discriminated against on the grounds of social status, race, ethnic origin or religious beliefs. This request was received by the General Prosecutor’s Office of Ukraine on 30 January 2007. It appears that the applicant learned about this document only in the framework of the Convention proceedings. 17. On 31 January 2007 the General Prosecutor’s Office of Ukraine informed the General Prosecutor’s Office of Turkmenistan of the suspension of the extradition proceedings pursuant to the interim measure indicated by the Court. 18. On 5 February 2007 the Gornostaevsky Prosecutor’s Office sent a petition to the head of the Gornostaevsky Police Department, stating that the applicant’s detention had breached criminal procedural law. According to the petition, the applicant had been arrested on 4 January 2007 and placed in a cell at the police station in accordance with the arrest warrant issued by the Ashgabat Azatlyksky District Prosecutor’s Office of Turkmenistan. The prosecutor noted that from 4 to 10 January 2007 the police had not brought the applicant before a court to decide on his detention and had not informed the prosecutor about his detention. The prosecutor considered that the situation had arisen because of the police officers’ negligent performance of their duties and called for disciplinary action to be taken against them. 19. By orders of 20 February and 15 March 2007 the police officers responsible for the applicant’s detention in violation of the law were punished by an oral warning, a formal reprimand and deprivation of bonus payments for one month. 20. In a letter of 19 April 2007 the First Deputy Prosecutor General of Turkmenistan, in reply to the request from the Ukrainian General Prosecutor’s Office, informed it that the observance of the applicant’s rights and legitimate interests would be guaranteed, in particular: “- the requirements of Article 3 of the Convention on Human Rights and Fundamental Freedoms will be fulfilled in respect of N.I. Soldatenko, he will not be subjected to torture, inhuman or degrading treatment or punishment after extradition; - in case of necessity he will be provided with appropriate medical treatment and medical assistance; - the right to fair judicial consideration of his criminal case will be secured to him.” He further pointed out that the death penalty had been abolished in Turkmenistan. 21. The relevant provisions of the Constitution read as follows: “International treaties that are in force and are agreed to be binding by the Verkhovna Rada of Ukraine are part of the national legislation of Ukraine.” “Every person has the right to freedom and personal inviolability. No one shall be arrested or held in custody other than pursuant to a reasoned court decision and only on grounds and in accordance with a procedure established by law. In the event of an urgent necessity to prevent or stop a crime, bodies authorised by law may hold a person in custody as a temporary preventive measure, the reasonable grounds for which shall be verified by a court within seventy-two hours. The detained person shall be released immediately if he or she has not been provided, within seventy-two hours of the moment of detention, with a reasoned court decision in respect of the holding in custody. Everyone who has been arrested or detained shall be informed without delay of the reasons for his or her arrest or detention, apprised of his or her rights, and from the moment of detention shall be given the opportunity to personally defend himself or herself, or to have the legal assistance of defence counsel. Everyone who has been detained has the right to challenge his or her detention in court at any time. Relatives of an arrested or detained person shall be informed immediately of his or her arrest or detention.” “Human and citizens’ rights and freedoms are protected by the courts. Everyone is guaranteed the right to challenge in court the decisions, actions or omissions of bodies exercising State power, local self-government bodies, officials and officers... ... After exhausting all domestic legal remedies, everyone has the right of appeal for the protection of his or her rights and freedoms to the relevant international judicial institutions or to the relevant bodies of international organisations of which Ukraine is a member or participant...” “The following are determined exclusively by the laws of Ukraine: (1) human and citizens’ rights and freedoms, the guarantees of these rights and freedoms; the main duties of the citizen; .. (14) the judicial system, judicial proceedings, the status of judges, the principles of judicial expertise, the organisation and operation of the prosecution service, the bodies of inquiry and investigation, the notary, the bodies and institutions for the execution of punishments; the fundamentals of the organisation and activity of the advocacy; ...” 22. The Convention was ratified by the Ukrainian Parliament on 10 November 1994. It entered into force in respect of Ukraine on 14 April 1995 and in respect of Turkmenistan on 19 February 1998. The text of the Convention was published on 16 November 2005 in the Official Gazette of Ukraine (no. 44, 2005). The relevant provisions of the Convention read as follows: “1. The person whose extradition is sought may also be arrested before receipt of a request for extradition, if there is a related petition (ходатайство). The petition shall contain a reference to a detention order ... and shall indicate that a request for extradition will follow. A petition for arrest ... may be sent by post, wire, telex or fax. 2. The person may also be detained without the petition referred to in point 1 above if there are legal grounds to suspect that he has committed, in the territory of the other Contracting Party, an offence entailing extradition. 3. In case of [the person’s] arrest or detention before receipt of the request for extradition, the other Contracting Party shall be informed immediately.” “1. A person arrested pursuant to Article 61 § 1 shall be released if no request for extradition is received within a month of the arrest. 2. A person arrested pursuant to Article 61 § 2 shall be released if no request for extradition is received within the time established by the law concerning arrest.” 23. Chapter 31-a of the Code lay down the procedure for considering complaints by citizens about decisions, acts and omissions of State bodies, legal persons and officials in the sphere of administration. 24. Article 2 of the Code provides that the task of the administrative judiciary is the protection of the rights, freedoms and interests of individuals and the rights and interests of legal entities in the sphere of public-law relations from violations by State bodies, bodies of local self-government, their officials and other persons in the exercise of their powers. Under the second paragraph of this Article, any decisions, actions or omissions of the authorities may be challenged before the administrative courts. 25. According to paragraph 7 of Chapter VII of the Transitional Provisions of the Code, after its entry into force any applications and complaints arising from administrative-law relations (Chapters 29-32 of the Code of Civil Procedure 1963) that had been lodged but not yet considered were to be examined under the procedure set out in the Code of Administrative Justice. 26. Article 106 of the Code governs the arrest and detention of persons suspected of committing a criminal offence. It provides: “The investigating body shall be entitled to arrest a person suspected of a criminal offence for which a penalty in the form of deprivation of liberty may be imposed only on one of the following grounds: 1. if the person is discovered whilst or immediately after committing an offence; 2. if eyewitnesses, including victims, directly identify this person as the one who committed the offence; 3. if clear traces of the offence are found on the body of the suspect or on the clothing which he is wearing or which is kept at his home. For each case of detention of a criminal suspect, the investigating body shall be required to draw up a record mentioning the grounds, the motives, the day, time, year and month, the place of detention, the explanations of the person detained and the time when it was recorded that the suspect was informed of his right to have a meeting with defence counsel before his first questioning, in accordance with the procedure provided for in paragraph 2 of Article 21 of the present Code. The record of detention shall be signed by the person who drew it up and by the detainee. A copy of the record with a list of his rights and obligations shall be immediately handed to the detainee and shall be sent to the prosecutor. At the request of the prosecutor, the material which served as a ground for detention shall be sent to him as well. The investigating body shall immediately inform one of the suspect’s relatives of his detention... Within seventy-two hours after the arrest the investigating body shall: (1) release the detainee if the suspicion that he committed the crime has not been confirmed, if the term of detention established by law has expired or if the arrest has been effected in violation of the requirements of paragraphs 1 and 2 of the present Article; (2) release the detainee and select a non-custodial preventive measure; (3) bring the detainee before a judge with a request to impose a custodial preventive measure on him or her. If the detention is appealed against to a court, the detainee’s complaint shall be immediately sent by the head of the detention facility to the court. The judge shall consider the complaint together with the request by the investigating body for application of the preventive measure. If the complaint is received after the preventive measure was applied, the judge shall examine it within three days after receiving it. If the request has not been received or if the complaint has been received after the term of seventy-two hours of detention, the complaint shall be considered by the judge within five days after receiving it. The complaint shall be considered in accordance with the requirements of Article 165-2 of this Code. Following its examination, the judge shall give a ruling, either declaring that the detention is lawful or allowing the complaint and finding the detention to be unlawful. The ruling of the judge may be appealed against within seven days from the date of its adoption by the prosecutor, the person concerned, or his or her defence counsel or legal representative. Lodging such an appeal does not suspend the execution of the court’s ruling. Detention of a criminal suspect shall not last for more than seventy-two hours. If, within the terms established by law, the ruling of the judge on the application of a custodial preventive measure or on the release of the detainee has not arrived at the pre-trial detention facility, the head of the pre-trial detention facility shall release the person concerned, drawing up a record to that effect, and shall inform accordingly the official or body that carried out the arrest.” 27. Article 148 of the Code provides that preventive measures shall be imposed on a suspect, accused, defendant, or convicted person. 28. Article 165-2 of the Code concerns the selection of a preventive measure in criminal proceedings. It reads as follows: “At the stage of the pre-trial investigation, a non-custodial preventive measure shall be selected by the investigating body, investigator or prosecutor. In the event that the investigating body or investigator considers that there are grounds for selecting a custodial preventive measure, with the prosecutor’s consent he shall lodge an application with the court. The prosecutor is entitled to lodge an application to the same effect. In determining this issue, the prosecutor shall be obliged to familiarise himself with all the material evidence in the case that would justify placing the person in custody, and to verify that the evidence was received in a lawful manner and is sufficient for charging the person. The application shall be considered within seventy-two hours of the time at which the suspect or accused is detained. In the event that the application concerns the detention of a person who is currently not deprived of his liberty, the judge shall be entitled, by means of an order, to give permission for the suspect to be detained and brought before the court under guard. Detention in such cases may not exceed seventy-two hours; and in the event that the person is outside the locality where the court is situated, it may not exceed forty-eight hours from the moment at which the detainee is brought within the locality. Upon receiving the application, the judge shall examine the material in the criminal case file submitted by the investigating bodies or investigator. A prosecutor shall question the suspect or accused and, if necessary, shall hear evidence from the person who is the subject of the proceedings, shall obtain the opinion of the previous prosecutor or defence counsel, if the latter appeared before the court, and shall make an order: (1) refusing to select the preventive measure if there are no grounds for doing so; (2) selecting a preventive measure in the form of taking of a suspect or accused into custody. The court shall be entitled to select for the suspect or accused a non-custodial preventive measure if the investigator or prosecutor refuses to select a custodial preventive measure for him or her. The judge’s order may be appealed against to the court of appeal by the prosecutor, suspect, accused or his or her defence counsel or legal representative, within three days from the date on which it was made. The lodging of an appeal shall not suspend the execution of the judge’s order.” 29. Article 382 of the Code lays down the procedure of appeal against first-instance court rulings and decisions, including those given under Article 165-2 of the Code. 30. The recommendation calls for the following procedural requirements in the case of removal of asylum seekers: “The Committee of Ministers ... Recommends that governments of member states, while applying their own procedural rules, ensure that the following guarantees are complied with in their legislation or practice: 1. An effective remedy before a national authority should be provided for any asylum seeker, whose request for refugee status is rejected and who is subject to expulsion to a country about which that person presents an arguable claim that he or she would be subjected to torture or inhuman or degrading treatment or punishment. 2. In applying paragraph 1 of this recommendation, a remedy before a national authority is considered effective when: 2.1. that authority is judicial; or, if it is a quasi-judicial or administrative authority, it is clearly identified and composed of members who are impartial and who enjoy safeguards of independence; 2.2. that authority has competence both to decide on the existence of the conditions provided for by Article 3 of the Convention and to grant appropriate relief; 2.3 the remedy is accessible for the rejected asylum seeker; and 2.4 the execution of the expulsion order is suspended until a decision under 2.2 is taken.” 31. The relevant extracts from the Resolution of the Plenary Supreme Court read as follows: “The Constitution of Ukraine provides that no one may be arrested or held in custody other than pursuant to a reasoned court decision and only on grounds and in accordance with a procedure established by law (Article 29). In accordance with the first paragraph of Article 9 of the Constitution, international agreements in force ratified by the Verkhovna Rada form part of the national legislation. Under the second paragraph of section 19 of the International Treaties Act of 29 June 2004, if an international treaty to which Ukraine is a party and which has been ratified in accordance with a procedure prescribed by law establishes rules which differ from those laid down by the Ukrainian legislation, the rules of the international treaty shall apply. Issues relating to inviolability and freedom of movement (detention, arrest, apprehension and so forth) are therefore regulated not only by the norms of the Code of Criminal Procedure (‘the CCP’) and Article 10 of the Criminal Code (‘the CC’), but also by international treaties to which Ukraine is a party, and in particular by the 1957 European Convention on Extradition and its Additional Protocols of 1975 and 1978, ratified on 16 January 1998 by Law no. 43/98-ВР, ... the CIS Convention on Legal Assistance of 22 January 1993, concluded in Minsk and ratified on 10 November 1994 by Law no. 240/94-ВР, bilateral treaties between Ukraine and other States, multilateral specialised treaties ... ... An examination of the practice of the courts of Ukraine in deciding issues relating to the extradition of persons to other States demonstrates that they have applied the relevant legislation differently. In particular, some courts initiate proceedings on applications by the competent authorities concerning the application of a preventive measure in the form of detention of the persons to be extradited, while others refuse to institute proceedings on such applications. For the purposes of the uniform application of the legislation governing extradition to other States and the protection of fundamental human rights and freedoms, the Plenary Supreme Court resolves: 1. ... in deciding whether an issue relating to extradition to another State is within the courts’ jurisdiction, the courts must refer to the provisions of the Constitution of Ukraine, other national legislation, including the [1957] European Convention or other international treaties to which Ukraine is a party and by which it has agreed to be bound, or the former USSR’s treaties applied by Ukraine pursuant to Law no. 1543XII of 12 September 1991 on the succession of Ukraine. The courts should therefore decide what treaties have been concluded between Ukraine and the requesting State and what procedure such treaties lay down for resolving extradition issues... 2. Having regard to the fact that the current legislation does not allow the courts independently to give permission for extradition of persons and that, pursuant to Article 22 of the European Convention on Extradition and similar provisions of other international treaties to which Ukraine is a party, the extradition procedure is regulated solely by the law of the requested State the courts are not empowered to decide on this issue. They [the courts] cannot on their own initiative decide on preventive measures applicable to persons subject to rendition or transfer, including their detention, as these issues are to be decided by the competent Ukrainian authorities. 3. Bearing in mind that in Ukraine a person can be held in detention for more than three days only on the basis of a reasoned court decision, and taking into account the fact that, pursuant to the second paragraph of Article 29 of the Constitution, such a decision can only be taken by a competent Ukrainian court, courts must accept jurisdiction and examine the merits of prosecutors’ requests and requests, approved by the prosecuting authorities, from the bodies acting upon extradition requests from other States [concerning individuals’ extradition], for detention and rendition under guard to the competent State bodies of the requesting State. 4. Pursuant to Article 16 of the European Convention on Extradition and other similar provisions of international treaties to which Ukraine is a party, the competent State bodies of the requesting State may in some cases request that a wanted person be temporarily detained. The competent State bodies dealing with the request shall take a decision in accordance with their country’s legislation. In this way, local courts decide on and examine the merits of requests made by prosecutors or other bodies approved by them which are acting upon requests from other States relating to the extradition or temporary arrest of a person for the purposes of his or her transfer under guard to the competent body of the requesting State, for a period established by the European Convention on Extradition or another international treaty. 5. The courts must decide whether an individual’s detention or temporary arrest is in accordance with the rules laid down in Article 165-2 of the Code of Criminal Procedure. The courts have the right to apply paragraph 4 of Article 165-2 of the Code of Criminal Procedure in a situation where a person is handed over to the court with a view to a decision on his apprehension (temporary arrest) for the purposes of extradition or transfer. The court shall review the existence of a request and of the relevant documents, established by treaty, forming the basis for extradition, and the absence of any grounds prohibiting extradition or transfer (Articles 2, 3, 6, 10 and 11 of the European Convention on Extradition and the 1975 and 1978 Additional Protocols thereto and Article 57 of the 1993 CIS Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters). In particular, detainees may not be extradited for political and military offences; in the event of expiry of the limitation period; when, in the territory of the party to which the extradition request has been made, a court has already delivered a judgment or resolution closing the proceedings concerning a charge similar to the one mentioned in the extradition request; when issues relating to the extradition of a citizen of Ukraine or stateless persons permanently residing on the territory of Ukraine are being considered; in respect of persons enjoying refugee status in Ukraine; if the requesting party fails to provide Ukraine with sufficient guarantees that a sentence of capital punishment will not be enforced for the offence for which extradition has been requested, [if the offence in issue] is punishable by the death sentence in accordance with the law of the requesting State; if the offence, in accordance with the law of the party requesting extradition, or Ukrainian law, can be prosecuted by means of a private prosecution; if the offence which forms the basis for extradition is punishable by a maximum [sentence] of less than one year’s imprisonment or a less severe penalty. The courts shall also take into account other provisions of the European Convention on Extradition or other international treaties with regard to legal assistance which give the party to which the extradition request is addressed the right to refuse extradition. The courts should also make due reference to the fact that, under Article 28 of the European Convention, its provisions replace any other bilateral international treaties, conventions or agreements regulating extradition issues between any two Contracting Parties. Therefore, if a requesting State is a party to the European Convention, the provisions of bilateral or multilateral international treaties concerning extradition shall be applied in part, where they amend the provisions of that Convention. 6. In accordance with the third paragraph of Article 29 of the Constitution, the courts shall take into account and examine the merits of complaints by the individuals concerned and their lawyers and legal representatives alleging unlawful detention on the basis of an extradition request from another State. Such requests shall be examined on the basis of Article 106 (7) and (8) of the Code of Criminal Procedure. In deciding whether a person is being detained lawfully, the judge shall refer to the relevant provisions of Article 106 of the CCP with regard to detention procedures and compliance with procedural formalities and the provisions of the relevant international treaty on the basis of which the person has been detained, and also to the presence of the necessary documents on which the extradition is based (in particular, the request for extradition, the decisions of the competent bodies of the requesting party with regard to detention or arrest of the person, and so forth).” 32. The third party, commenting on the lack of a relevant procedure for reviewing decisions on extradition in Ukrainian law, submitted an example of the relevant domestic practice, which at the time had received considerable attention from the international community. 33. The 2006 Country Reports on Human Rights Practices, released by the United States Department of State on 6 March 2007, described this example of administrative practice in the following way in its report on Ukraine: “On February 16, UNHCR and the international community strongly condemned the forcible deportation of 10 Uzbek asylum seekers. The SBU [Security Service of Ukraine] detained eleven men in Crimea based on extradition warrants issued by the Uzbekistani authorities on the grounds that they allegedly participated in the Andijan mass protests in Uzbekistan in May 2005. They were transferred to a Ministry of Interior detention facility in Simferopol. The UNHCR asked authorities for assurances that no asylum-seekers would be forcibly returned unless they had been determined not to be refugees and had completed asylum procedures, including any appeal. The Migration Service in Crimea rejected the asylum applications on the basis that they were ‘manifestly unfounded’. On February 14, 10 of the men were forcibly returned to Uzbekistan. (The remaining man was reportedly allowed to stay because he had relatives in the country.) Twenty-one Ukrainian regional human rights organizations issued a statement protesting the incident. On May 3, the Ministry of Justice issued a legal opinion saying that deportation was illegal. The president’s chief of staff stated that the deportation was a violation of procedure because the refugees were not granted ten days to appeal the deportation, but added that the extradition was acceptable as they ‘belonged to a radical Islamic group’.” 34. The Country Reports on Human Rights Practices of the US Department of State (hereafter “the Reports”) for 2003, released on 25 February 2004, noted with respect to Turkmenistan: “c. Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment ... there were widespread credible reports that security officials tortured, routinely beat, and used force against criminal suspects and prisoners to obtain confessions... ... There were reports that prisoners needing medical treatment were beaten on their way to and from the hospital. Security forces also used denial of medical treatment and food, verbal intimidation, and placement in unsanitary conditions to coerce confessions... ... Conditions were poor in prisons, which were unsanitary, overcrowded, and unsafe. Disease, particularly tuberculosis, was rampant, in part because prisoners who were ill were often not removed from the general prison population. Food was poor and prisoners depended on relatives to supplement inadequate food supplies. Facilities for prisoner rehabilitation and recreation were extremely limited. Most prisoners could receive food and sundries once per month from relatives; those who did not suffered greatly. Prisoners held under the ‘Betrayers of the Motherland’ law were unable to receive food, sundries, or visits by relatives. Most were held in the newly constructed maximum security prison at Ovadan Depe, where access to prisoners was extremely limited... There were three types of prisons throughout the country: educational-labor colonies; correctional-labor colonies; and prisons. Some prisoners, usually former government officials, were sent into internal exile. In the correctional-labor colonies, there were reports of excessive periods of isolation of prisoners in cells and ‘chambers’. A new prison for hardened criminals and political prisoners at Ovadan Depe, near Ashgabat, was completed in June. Authorities allegedly threatened, harassed, and abused prisoners in an attempt to force some prisoners to renounce their faiths. In Gyzylgaya prison, located in the Karakum Desert, prisoners were forced to work in a kaolin mine under hazardous and unhealthy conditions... ... Some prisoners died due to the combination of overcrowding, untreated illnesses, and lack of adequate protection from the severe summer heat... ... Prison officials refused to respond to inquiries from family members and foreign diplomats about prisoners’ whereabouts or physical condition, or to allow family members, foreign diplomats or international observers, including the International Committee of the Red Cross (ICRC), to visit detainees or prisoners, including political prisoners, by year’s end. The Government claimed that granting access to prisoners would be an admission that there were problems with the country’s penal system... Detainees are entitled to immediate access to an attorney once a bill of indictment has been issued; however, in practice they were not allowed prompt or regular access to legal counsel. Incommunicado detention was a problem. Authorities regularly denied prisoners visits by family members, who often did not know their whereabouts... d. Arbitrary Arrest, Detention, or Exile ... In February, President Niyazov signed the ‘Betrayers of the Motherland’ law, which characterizes any opposition to the government as an act of treason. Those convicted under the law face life imprisonment, are ineligible for amnesty or reduction of sentence, and may not receive visitors or food from outside sources... By year’s end, approximately 50 to 60 persons were arrested or convicted under the law... The law provides that a person accused of a crime may be held in pretrial detention for no more than 2 months, which in exceptional cases may be extended to 1 year. In practice, authorities often exceeded these limits ... e. Denial of Fair Public Trial The Constitution provides for an independent judiciary; however, in practice the judiciary was not independent. The President’s power to select and dismiss judges subordinated the judiciary to the Presidency. The President appointed all judges for a term of 5 years. There was no legislative review of these appointments, except for the Chairman (Chief Justice) of the Supreme Court, and the President had the sole authority to dismiss all appointees before the completion of their terms... The law provides for the rights of due process for defendants, including a public trial, access to accusatory material, the right to call witnesses to testify on their behalf, a defense attorney, a court-appointed lawyer if they could not afford one, and the right to represent themselves in court. In practice, authorities often denied these rights, and there were few independent lawyers available to represent defendants... In January, summary trials of those accused in the November 2002 attack began without public notice. Suspects were not afforded regular access to their attorneys, and their attorneys were not allowed to cross-examine other defendants in the case during the pretrial investigation. Attorneys for some defendants received notice that proceedings against their clients were beginning only 15 minutes before the trials (the norm is 1 week). Some defendants did not receive adequate legal counsel. Attorneys for a number of defendants expressed regret for defending their clients in their opening statements, which were broadcast on state-owned television, even though the trials themselves were not public. The Government refused to allow family members or foreign diplomats to observe the proceedings. AI reported that none of the defendants had an independent lawyer representing them during their trial. Defendants were not allowed to confront or question witnesses against them. Defendants and their attorneys were denied access to government evidence against them; the General Prosecutor’s Office stated the evidence consisted of ‘state secrets’. The defendants did not enjoy a presumption of innocence. Before the trials began, the Government publicly announced that the principal defendants were guilty and sentenced them to life imprisonment under the new ‘Betrayers of the Motherland’ law. Sentences for those convicted of involvement in the November 2002 attack ranged from life imprisonment to forced resettlement. The systemic failure to observe due process in investigating and prosecuting prisoners implicated in the attack made it difficult to distinguish between those actually complicit in the attack and some who may be political prisoners convicted for their perceived political opposition views. An OSCE Rapporteur described the trials as ‘in breach of all the most elementary principles of the rule of law’. Courts allegedly ignored allegations of torture that defendants raised in trial... In practice, adherence to due process in other cases was not uniform, particularly in the lower courts in rural areas. Even when due process rights were observed, the authority of the government prosecutor was so much greater than that of the defense attorney that it was very difficult for the defendant to receive a fair trial. In an October 2002 case against two former senior officials, the Ashgabat City Court refused to admit evidence critical to the defense, despite the fact that it appeared to be admissible under the law. In general, observers were not permitted access to ostensibly open court proceedings. The Government physically prevented foreign diplomats from attending the trials of accused November 2002 attackers and of a civil society activist in March; however, foreign diplomats attended the trial of two former officials in October 2002 and of a member of Jehovah’s Witnesses in May...” 35. The 2006 Reports, released on 6 March 2007, showed no improvements in the situation: “c. Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment The constitution and law prohibits such practices; however, security officials tortured, routinely beat, and used excessive force against criminal suspects, prisoners, and individuals critical of the government, particularly in detention while seeking a confession... Prison and Detention Center Conditions Prison conditions were poor; prisons were unsanitary, overcrowded, unsafe, and posed a threat to life. Disease, particularly tuberculosis (TB), was rampant. There continued to be concerns that prisoners with TB were released untested and untreated into the general population, although the government reportedly began screening prisoners for TB, among other diseases, upon their release and provided some treatment in some cases. Prisoners diagnosed with TB were transferred to a special Ministry of Interior hospital in Mary Welayat for treatment. Government officials protested foreign diplomatic missions’ allegations of poor prison conditions, but they did not respond to direct inquiries. Nutrition was poor, and prisoners depended on relatives to supplement inadequate food supplies, although prisoners convicted for treason were unable to receive supplies from relatives. The government defined treason as any opposition to the government... Family members and international publications claimed some prisoners died due to the combination of overcrowding, untreated illnesses, and lack of adequate protection from the summer heat... There were three types of incarceration facilities throughout the country: educational-labor colonies, correctional-labor colonies, and prisons. Some prisoners, usually former government officials, were sent into internal exile. In the correctional-labor colonies, relatives of prisoners reported excessive periods of prisoner isolation. There were reports that prisoners were forced to work under hazardous and unhealthy conditions in a kaolin mine in Gyzylgaya Prison, near Dashoguz... d. Arbitrary Arrest or Detention The law prohibits arbitrary arrest and detention; however, arbitrary arrest and detention were serious problems... Arrest and Detention ... Detainees are entitled to immediate access to an attorney once a bill of indictment is issued, and they were able to choose their counsel; however, in practice they did not have prompt or regular access to legal counsel. In some cases legal counsel ceased advising their clients after government officials altered the charges or case details initially provided to defendants. Incommunicado detention was a problem. By law detainees are to be charged within 72 hours; authorities did not respect this right in practice. There was no bail system. Authorities denied some prisoners visits by family members during the year. Families sometimes did not know the whereabouts of imprisoned relatives... The law characterizes any opposition to the government as an act of treason. Those convicted faced life imprisonment and were ineligible for amnesty or reduction of sentence. Unlike in previous years, there were no known treason convictions during the year. Those expressing views critical of or different from those of the government were arrested on charges of economic crimes against the state and various common crimes... e. Denial of Fair Public Trial The law provides for an independent judiciary; however, in practice the judiciary was subordinate to the president. There was no legislative review of the president’s judicial appointments, except for the chairman (chief justice) of the Supreme Court, who was reviewed by the rubber-stamp parliament. The president has the sole authority to dismiss all judges before the completion of their terms and has done so frequently down to the city level... Trial Procedures The draft revised criminal procedure code released in 2004 remained pending at year’s end. The code could significantly alter the 1961 Soviet code, which was still in force. The proposal incorporated rights of the accused, including the introduction of the presumption of innocence, restraints on police searches, establishment of a bail mechanism, and limits on pretrial detention. The law provides due process for defendants, including a public trial, access to accusatory material, the right to call witnesses to testify on their behalf, a defense attorney, a court-appointed lawyer if the defendant cannot afford one, and the right to represent oneself in court. In practice authorities often denied these rights, and there were few independent lawyers available to represent defendants. There is no jury system. At times defendants were not allowed to confront or question witnesses against them, defendants and their attorneys were denied access to government evidence against them, and defendants frequently did not enjoy a presumption of innocence. In some cases, courts refused to accept exculpatory evidence provided by defense attorneys, even if that evidence would have changed the outcome of the trial. Even when due process rights were observed, the authority of the government prosecutor far exceeded that of the defense attorney, and it was very difficult for the defendant to receive a fair trial. Court transcripts were frequently flawed or incomplete, especially in cases in which defendants’ testimony needed to be translated from Russian to Turkmen. Lower courts’ decisions could be appealed, and the defendant could petition the president for clemency. However, in most cases, courts allegedly ignored allegations of torture that defendants raised in trial. Foreign observers were permitted at some trials. However, many more trials, especially those considered to be politically sensitive, including the trial of Helsinki Foundation affiliate and RFE/RL correspondent Ogulsapar Myradova, were closed to observers... Political Prisoners and Detainees The law characterizes any opposition to the government as an act of treason. Those convicted faced life imprisonment and were ineligible for amnesty or reduction of sentence. Opposition groups and international organizations claimed the government held many political detainees, although the precise number was unknown. Detainees may include several hundred relatives and associates of those implicated in the November 2002 attack being held without charge for their perceived political opinions and possible involvement in the attack. Government officials refused to respond to inquiries from family members and diplomats about political prisoners’ location or condition. Government officials also refused to permit family members, foreign diplomats, or international observers, including the ICRC, access to detainees or prisoners associated with the November 2002 attack.” 36. Referring to the continuation of gross and systematic violations of human rights in the country, the UN Secretary-General’s report highlighted among the main areas of concern the use of torture and the absence of an independent judiciary in Turkmenistan. In his report the Secretary-General further noted, in particular: “14. While welcoming the submission of the reports, the committees generally expressed the need for more information on the practical implementation of the provisions of the conventions, including statistical data, in accordance with the guidelines for preparation of reports. The Committee on the Elimination of Racial Discrimination ‘noted with deep concern the major contradictions between, on the one hand, consistent information from both intergovernmental and nongovernmental sources relating to the existence of grave violations of the Convention in Turkmenistan, and, on the other hand, the sometimes categorical denials by the State party’ (CERD/C/TKM/CO/5). The Committee also encouraged the State party to increase its efforts to institute a constructive and sincere dialogue. ... E. Developments concerning the full respect for all human rights and fundamental freedoms Prison conditions and torture 23. The following sections are based on information obtained by OHCHR, the special procedures of the Human Rights Council and the United Nations treaty bodies. Due to the limited access to information in Turkmenistan by international human rights bodies, further details on the human rights situation in the country were not available for the preparation of the present report. ... 38. The Special Rapporteur on the question of torture referred to the situation of a number of individuals convicted in December 2002 and January 2003 to prison terms ranging between five years and life for their alleged involvement in what the authorities described as an assassination attempt on the President in November 2002 (E/CN.4/2006/6/Add.1). All these prisoners continue to be held incommunicado, without access to families, lawyers, or independent bodies such as the International Committee of the Red Cross. The Special Rapporteur on the question of torture also mentioned Turkmenistan as one of 33 Governments that have never responded to urgent appeals sent under his mandate (A/60/316), although having received a significant number of urgent appeals. 39. The death in custody of a Radio Free Europe/Radio Liberty journalist, Ogulsapar Muradova, whose body allegedly bore signs of torture, raises particular concern. 40. The Committee on the Rights of the Child expressed its deep concern at the information that torture and ill-treatment of detainees, including children, is widespread (CRC/C/TKM/CO/1), especially at the moment of apprehension and during pre-trial detention, and used both to extract confessions or information and as an additional punishment after the confession...” 37. The International Helsinki Federation for Human Rights in its 2007 Report on Human Rights in the OSCE Region noted the widespread use of torture and ill-treatment in custody in Turkmenistan and poor prison conditions there. The same problems in Turkmenistan are mentioned by Human Rights Watch in its World Report 2007.