IX. Prospects of Improvement

In April 2006, Karim Sinjari, the KDP minister of interior, said that once in force, the draft anti-terror law, which the Kurdistan National Assembly had just adopted and which criminalizes a host of terrorism and terror-related offenses, would clarify the legal status of terror suspects. He noted, however, that the law would have no retroactive application, and, accordingly, would not affect the legal status of those already in detention.[146] If terror suspects arrested before ratification of the anti-terror law "were to be referred to the criminal courts, they would not be convicted," Sinjari stated. "They would have to be released in accordance with the Penal Code and the Code of Criminal Procedure." He stressed the "dangerous" nature of the offenses in question, and the difficult predicament facing the Kurdistan authorities, who could neither refer these suspected terrorists to the courts nor release them. "We are looking for ways to resolve this matter," Sinjari stated. "Give us a realistic solution."[147]

In this and other official meetings, Human Rights Watch stressed the need to adhere to both domestic and international human rights standards with regard to due process for all persons deprived of their liberty. The organization recommended, as an interim measure, the appointment of a judicial committee independent of the Asayish agencies to conduct an urgent review of the cases of detainees held in pretrial and long-term detention without trial. Minister of Justice Faruq Jamil was non-committal about the creation of such a judicial committee, observing that the legal authorities were about to launch a review of legislation currently in force and promulgate new laws in conjunction with the unification of the KDP and PUK administrations. The minister also told Human Rights Watch that a draft Ministry of Justice law contained a proposal for the creation of a general directorate of prisons under Ministry of Justice authority, with responsibility for all detainees in the Kurdistan region.[148] He hoped that if adopted, this law would address some of our concerns.[149]

On May 10, 2006, after having conducted visits to major Asayish detention facilities in the governorates of Duhok, Arbil, and Sulaimaniya, Human Rights Watch met with President Mas`ud Barzani. The organization presented its findings, focusing on the following key concerns: long-term detention without trial of terror suspects and others suspected of serious felonies; failure to refer detainees to an investigative judge in accordance with the law; the detention of persons apparently in lieu of relatives being sought by the authorities for terror-related offenses; failure to implement court decisions, namely the non-release of both acquitted defendants and convicted prisoners who had already served their terms of imprisonment; poor conditions of imprisonment; and the ill-treatment of detainees, including lengthy periods of solitary confinement.[150]

Human Rights Watch reiterated the urgent need for an independent judicial review of all detainee cases under Asayish authority. Such an independent review would help the authorities to make determinations regarding the possible release of the following: a) detainees no longer deemed to be security threats or constituting a lesser threat; b) detainees who had been tried and convicted and had already served their sentences; and c) detainees who had simply been forgotten or overlooked.

Following this discussion, President Barzani agreed that the Kurdistan authorities needed to address these concerns if indeed the situation with regard to Asayish detention practices were as Human Rights Watch had depicted. He proposed convening a meeting in the near future, attended by the minister of interior and the directors of the Asayish agencies, to allow Human Rights Watch to present its findings and recommendations before it released its report.[151]

While the proposed meeting did not, for practical reasons, take place in the ensuing months, Human Rights Watch maintained its dialogue with relevant officials. The day after its meeting with President Barzani, we met with the general director of the KDP's Asayish Gishti, Ismat Argushi, who said that "yesterday we, together with the prison directors, met and formed a committee to review the cases of all those detainees who have not been referred to trial." He said the committee would review cases over the next five days and carry out visits to the detention facilities.[152] However, he did not specify who the committee members were, nor the terms of reference of the review, or clarify what steps they would take once they completed their review. Several days earlier, the general director of the PUK's Asayish Gishti, Saifuddin `Ali, also told Human Rights Watch that he had ordered a review of detainee cases, to commence over the coming days. He added that an earlier review had recommended the release of some 60 detainees, but Human Rights Watch could not confirm that those releases had taken place.[153]

Human Rights Watch welcomed the reviews that KDP and PUK Asayish officials said they were conducting into the cases of untried detainees in their custody. Between May and December, the Asayish released several hundred detainees (although Human Rights Watch could not determine how many of those were the result of the reviews). In our estimation, however, these positive measures do not obviate the need for an independent judicial committee, unconnected to the Asayish agencies, to conduct a thorough and transparent review of detainee cases, submit recommendations to the appropriate judicial authorities, and make public its findings.