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Trial

For some defendants, their trial might be the only opportunity they have to raise their complaints about torture and ill-treatment and hope that they may obtain some type of remedy. After several months of isolation, a public trial is also often the first time when the defendants get to see their family members and others beyond those who work within the criminal justice system.

Due to the lack of confidential meetings with their lawyers, their fear of reprisal, and their general isolation, some detainees do not raise allegations of torture and ill-treatment until trial, often many months too late for meaningful documentation of any injuries. According to the Office of the Prosecutor General, between 2002 and mid-2007 30 defendants during the trial phase of their cases filed complaints of torture and illegal treatment, although it is unclear whether this covers formal complaints only or whether it also includes instances in which defendants used the opportunity of a trial hearing to offer testimony that they had been ill-treated. On the basis of four of these complaints the authorities opened criminal cases. In three of the cases the accused police men were found guilty of exceeding their authority (article 206 of the Uzbek Criminal Code) and sentenced to pay a fine.¹²⁴

In 2006 and 2007 Human Rights Watch observed three trials during which defendants made torture allegations. On the days Human Rights Watch was able to attend, 13 of 24 defendants gave testimony regarding ill-treatment that they claimed they had been subjected to. In no case did the defendants obtain a remedy from the court. Instead judges either ignored the allegations of torture or ill-treatment or refused requests to investigate them. Furthermore, in the same cases law enforcement officials threatened detainees or their relatives before, during and after trial with additional punishment for reporting torture and mistreatment during the trial. Finally, in the past two years the government has increasingly restricted access to trials for independent trial monitors and relatives, making it more difficult to learn about occasions on which defendants’ raise allegations of torture or ill-treatment in their testimony.

Judges’ Indifference to Torture Allegations and Coerced Testimony

International law and Uzbek domestic legislation requires that allegations of torture be investigated, that coerced testimony is not admitted as evidence, and that perpetrators are prosecuted.¹²⁵ In a positive move, in 2003, the Supreme Court of the Republic of Uzbekistan issued an instruction barring the use of evidence as the basis for conviction if it was obtained under torture or where the suspect was deprived access to a defense counsel. In September 2004, the Supreme Court passed a resolution declaring all evidence obtained by illegal means to be inadmissible. Furthermore, article 22 of the Criminal Procedure Code prohibits obtaining statements from a suspect, accused, defendant, victim, witness, and other participants in the proceedings by means of violence, threats, violation of their rights, and other illegal treatment.¹²⁶

In practice, though, judges flout their legal obligations by failing to call for such investigations and admitting as evidence testimony coerced under torture or other ill-treatment. In no trial monitored by Human Rights Watch did a judge refuse to admit as evidence a confession or statement that, according to the defendant’s court testimony, was coerced under torture.

In addition, Uzbek government claims of judicial reform are belied by ongoing monitoring by Human Rights Watch that shows that the Uzbek judiciary lacks independence.¹²⁷ Imbalance between the prosecution and defense persists in criminal cases. Judges consistently and predictably hand down convictions in line with the prosecutors’ demands.

In trials monitored by Human Rights Watch the atmosphere was not one conducive to an impartial hearing but rather openly hostile to the defense. Defendants in criminal hearings in Uzbekistan, as in other countries in the region, are held in cages guarded by either police men in uniform or soldiers in camouflage, creating an environment not conducive to the presumption of innocence,¹²⁸ which further imbalances the prosecution and defense. In addition defendants are not allowed to talk to their lawyers during the trial. A Human Rights Watch representative witnessed how law enforcement officials prevented lawyers (sometimes outright physically) from speaking to their clients during trial. In general, the courts are laid out in a way that lawyers sit with their back to the defendants making even eye contact impossible.

In order to pursue their allegations of torture, defendants not only have to overcome the hostile court atmosphere but also the fact that their loved ones and strangers are listening to their profoundly personal narratives of inhuman treatment and humiliation. Some defendants would not testify about torture or go into details to spare their parents or wives. As Kodirali Nishanboev finished his court testimony at his trial in July 2007, describing how several police men beat and hit him in pre-trial detention, he said: “They beat all of us. The others do not say anything because they do not want to worry their relatives.”¹²⁹ In trials Human Rights Watch has observed, often, the audience would mutter, comment and cry during torture testimonies from the defendants.

As noted above, in 2006, Human Rights Watch monitored two group trials of alleged religious extremists where the defendants testified that they had been subjected to torture.¹³⁰ In neither case did the judges start an investigation nor did they exclude the testimony alleged to have been obtained under torture. Instead, they lectured the defendants about the roles and powers of police agents, investigators and prosecutors

For example, Judge Shermukhamedov of the Tashkent Province Court asked defendant Mansur Kholikov about his torture allegations and showed him a report [in Russian, protokol] from the investigation period signed by Kholikov and his state defense lawyer. The following exchange ensued:

Kholikov: No, when I signed this protocol there was neither a lawyer nor an investigator there, only operativniki.

Judge:  The operativniki do not have the right to conduct an interrogation.

Kholikov: But they forced me.

Judge:  This was not an interrogation but an explanatory meeting (obiasnitelnaia vstrecha). […] Did you tell your lawyer about the beatings?

Kholikov: I did not have confidential meetings [with my lawyer]. I tried to tell the lawyer everything at the first day but then the operativniki told me that here [in detention] even the walls have ears. The investigator dictated everything to me. Every day before the interrogation started the operativniki beat me and prepared me for what I should say. […]There was no point in telling my lawyer about the beating. He was going to leave and I had to stay there.¹³¹

The judge did not act on Kholikov’s testimony and instead showed him more investigation reports with his signature on them. Kholikov’s own defense lawyer, Abdumalik Jalilov, later said in his final argument that he got access to Kholikov only on January 12–seven days after his arrest. “I saw the reports without the signature of [state-appointed defense] lawyer Boboev. The signatures appeared in the case material later. The lawyer [Boboev] signed this later. The investigation was conducted without a lawyer.” He also complained that he did not have confidential meetings with his client despite having demanded them several times.¹³²

The judge presiding over this trial appeared to dismiss testimony made by the defendants and the barriers these defendants faced when seeking to complain about torture while their case was under investigation. He made no mention of the torture allegations in his rulings. All eight defendants were found guilty of having illegally organized a public or religious organization (article 216 of the Uzbek Criminal Code).

Nodir Giosov had a similar exchange with Judge Sharipov during another group trial of 14 alleged Hizb ut-Tahrir members observed by Human Rights Watch: “[In pre-trial detention] I did not understand who was an operativnik and who was an investigator. There were five or six men. How am I supposed to know who is who?” During this trial at the Tashkent Province Court in July/August 2006 at least five defendants testified about torture and another two about other methods of pressure.¹³³ The verdict notes that four of the defendants testified that police used physical pressure against them, but dismisses the allegation of abuse due to the defendants’ inability to identify the police agents.¹³⁴ In his closing speech the prosecutor said:

“Despite the fact that they allegedly confessed under physical pressure, the procuracy believes that the defendants came up with this torture story to shirk responsibility and to confuse the court. The defendants had the opportunity to complain to the prosecutor about illegal activities of the police agents. All defendants had meetings with the prosecutor but they did not do that. Furthermore the defendants were not able to describe the appearance and did not know the names of the police agents that allegedly beat them. ¹³⁵

Presiding Judge Sharipov stated in his ruling that he had found no evidence of torture and concluded that the defendants had alleged ill-treatment only to avoid responsibility for their crimes, basically repeating the prosecutor’s arguments. It is not clear what steps, if any, the judge took to reach this conclusion. There is also reason for skepticism about his ability to take meaningful steps to investigate torture allegations given the judiciary’s lack of independence in Uzbekistan.

Another example of a judge’s indifference to torture allegations is the case of 63- year-old Rimma Tirbakh and 60-year-old Akhmat Tojibaev, the man Tirbakh was accused of ordering to murder her neighbor. Both individuals gave detailed testimony in court alleging that they had been tortured. Also, in their appeal hearing at the Syrdaria Province Court on July 16, 2007 they testified about beatings, threats, and harassment that they were subjected to, so that they would confess. The presiding appeals Judge Khabibullaev asked questions and listened to them. After listening carefully to the full defense testimonies about torture-extracted confessions, the judge sent all the observers out of the room. He opened the doors to the courtroom four minutes later, and without waiting for the audience to enter, announced his ruling upholding the 15-year prison sentence for Rimma Tirbakh and the 16-year sentence for Akhmat Tojibaev.¹³⁶

Mirzo M. was a witness in a trial against eight alleged Hizb ut-Tahrir members in a provincial capital in western Uzbekistan. He himself was tortured while in detention. At trial he retracted his testimony against some of the defendants, which he said was coerced following severe beatings. The judge asked him: “Why did you not say anything about the beatings for the last five months you were walking free?” He answered: “I was scared and couldn’t approach anyone [on this question].”¹³⁷ Although the judge listened carefully to this and other testimony about torture he did not order an investigation into the allegations. Ultimately, three defendants were sentenced to prison terms between five and eight years, and the other five men to corrective labor or fines.¹³⁸

Police Intimidation During Trial

Perhaps in an attempt to dissuade defendants from recanting their testimony during trial, police are known to continue ill-treatment of the accused and witnesses regardless of whether they are in custody once the case goes to trial. For example, during a trial of eight alleged “Wahhabists” at the Tashkent Province Court in spring 2006, Zoir Juraev—the alleged leader of a religious cell who was subjected to the most intensive torture—said that several thugs came to his cell to make sure he stood by his alleged confession coerced from him during the investigation and did not allege at trial that he had been tortured.¹³⁹

Human Rights Watch documented several cases in which witnesses who testified at trial about torture were subsequently summoned and harassed by the police. One such case was that of Bahodir B. Four months after he had testified about torture in a trial against eight alleged Hizb ut-Tahrir members he and other witnesses were summoned without a warrant to the National Security Service department in the province capital. The men waited a long time at the building and were then called in one by one. Bahodir remembers: “As soon as I entered I saw my tormentors, the operativniki. I told them “What was I supposed to say if I was beaten. At court I told the truth.” And they answered: “If you don’t retract your statement, we’ll put you in prison.” There and then, they burned several parts of his body with cigarettes as a warning and coerced him to sign another document without reading it.¹⁴⁰

Restrictions for Trial Monitors

According to article 19 of the Uzbek Criminal Procedure Code, hearings on criminal cases shall be public except when state secrets or sexual or juvenile crimes are concerned.¹⁴¹ Article 14 of the ICCPR states that “everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.” The UN Human Rights Committee has held that this means that “both domestic legislation and judicial practice must provide for the possibility of the public attending, if members of the public so wish” and that “courts must make information on time and venue of the oral hearings available to the public and provide for adequate facilities for the attendance of interested members of the public, within reasonable limits, taking into account, e.g., the potential public interest in the case, the duration of the oral hearing and the time the formal request for publicity has been made.”¹⁴²

While a public hearing with the presence of independent observers does not guarantee that torture victims will feel secure enough to speak up at trial about their torture, when a trial is closed to the public, it is impossible for detainees’ relatives and human rights groups to even know whether the defendant has made any allegations about torture at all.

Although for many years, access to trials in Uzbekistan was not always easy, for the most part trials were open to the public, thus allowing independent local and international monitors to document any fair trial violations. However, this changed following the 2005 Andijan uprising and massacre. Of 20 trials related to the Andijan events held between fall 2005 and summer 2006, only one was open. This is particularly disturbing in light of credible and consistent allegations of ill treatment, including torture, by those who had been interrogated in the immediate aftermath of the Andijan events.¹⁴³

In December 2005 the Supreme Court issued two press statements declaring a total of twelve Andijan related trials closed.¹⁴⁴ Local human rights defenders or lawyers informed Human Rights Watch and the diplomatic community in Tashkent about several of these trials, at times before they were declared closed. On November 28, 2005 a Human Rights Watch representative tried to monitor one of those trials but police outside the Orta Chirchik District Court demanded that Human Rights Watch obtain written permission from the Supreme Court to monitor the trial. When Human Rights Watch attempted to do so, a person in the secretariat of the chairman of the Supreme Court who did not identify himself on the telephone told Human Rights Watch that the Supreme Court was not responsible for trial monitoring and that we should write a letter to the head of the respective district court.¹⁴⁵ Two days later the Supreme Court issued a press release declaring the trial closed. The authorities did not issue any other official statement relating to the other seven Andijan-related trials between January and July 2006. Only with the help of relatives, lawyers and in one case, by chance, was Human Rights Watch able to learn that the trials were to take place. Later, Human Rights Watch received copies of the verdicts for two of the seven trials saying that they were closed.¹⁴⁶

Except for the Andijan-related trials, Human Rights Watch is not aware of any official, public written statement by a judge or a chair of a court formally declaring a trial closed. While trial observers do not require written permission to be present in the courtroom, yet Human Rights Watch has witnessed and experienced a number of cases in which police or plain clothes agents have used lack of written permission as an excuse to deny independent monitors access to courts.¹⁴⁷

Indeed, what often happens in practice is that policemen or plain clothes men deployed at the fence or barrier on the perimeter of court buildings physically prevent monitors or relatives from even coming close to the court building. For example, on January 30, 2006 two police cars had set up a checkpoint and were stopping every car entering Dustobod, where the trial of human rights defender Mutabar Tojibaeva was supposed to start. Six uniformed police officers asked travelers where they were going and examined their identification documents. After a Human Rights Watch representative told police that he was going to the trial they instructed him to wait and said that they were calling their superior. Five minutes later, they told the Human Rights Watch representative he could not enter the town. The policemen said Makhmud Sirojitdinov, a Ministry of Interior colonel, gave them the command and told them the trial was closed. Later, the Ministry of Interior press service told Human Rights Watch that Sirojitdinov’s name did not exist in their records.¹⁴⁸ Several days later, relatives and observers–including Human Rights Watch—were allowed into the court room.

In at least one case that Human Rights Watch documented, it would seem that the authorities used more subtle methods than physical denial of access to exclude independent monitors from public trial hearings. Ulugbek Khaidarov was due to be tried at the Jizzakh Province Court on October 5, 2006. On that date, when a Human Rights Watch representative was let into the courtroom, Khaidarov immediately indicated that she should leave. The day before, his sister told local human rights defenders waiting outside the court building that Khaidarov did not want to have independent monitors in the court room because “this would only worsen the situation for him.”¹⁴⁹ In a meeting with Human Rights Watch after his release, Khaidarov said that he had been given an injection several days before the trial “that made his head as heavy as metal.” He had difficulties remembering names and felt less pain in his feet, which had been hurting from severe beatings during pre-trial detention.

When the Human Rights Watch team came into the courtroom, I was standing and balancing a bit back and forth. I was saying something. Because of the injection, I could not even myself understand what I was saying. Bakhtior told me later that I said “Guys, please, no” […] I was warned beforehand that my friends should not be present. […]I did not say anything to the judge at the trial - nothing about the torture or about other treatment in detention. It would be useless to tell him.¹⁵⁰

Even when trials are open, Uzbek authorities in some cases, particularly group trials involving multiple defendants, restrict access in ways that create hardship for defendants’ relatives who must travel considerable distances, at considerable expense. In one such case, a large number of relatives, journalists and independent monitors from local and international groups came to the Tashkent Regional Court to be present at to the trial of 29 alleged Hizb ut-Tahrir members, which started on July 26, 2006. First, a young plainclothes man told them that the defendants would be split into a group of 14 and a group of 15. On that day the trial started only for 14 of the defendants. The other relatives were told to go home. After the hearing the families and monitors were told that as of the next day the hearings for both groups would be held at two separate courts in districts at the opposite direction of Tashkent.

Despite the long distance and the high travel costs about 40 to 50 relatives of the group of 14 gathered in Toitepa the next morning, only to learn from another plain clothes man that the court room was too small, and that they would allow only one family member per relative inside. The relatives tried, unsuccessfully, for two relatives per defendant to be allowed inside the court. While the Human Rights Watch representative was allowed to enter the court room, two local human rights defenders were denied access. ¹⁵¹

Sometimes the authorities fill the benches in the court room with plain clothes men, which limits the number of seats available to relatives and observers. In trials monitored by Human Rights Watch these men take very detailed notes of the proceedings, even when the court secretary does not.