55 OSCE participating States
12 March 2003
OSCE Rapporteur’s Report on Turkmenistan
By Prof. Emmanuel Decaux
The attached Rapporteur’s Report was prepared pursuant to paragraph 12 of the OSCE’s Moscow Mechanism invoked by a group of ten OSCE participating States on 20 December 2002. The Rapporteur was appointed by the same group of States on 16 January 2003. As the OSCE institution designated to provide support to the implementation of the Moscow Mechanism, the OSCE Office for Democratic Institutions and Human Rights (ODIHR) is required to transmit the Rapporteur’s Report to all participating States.
1. At the request of ten participating States, the Human Dimension Mechanism was triggered according to § 12 of the Moscow Document. The mission is composed of a single rapporteur, as Turkmenistan failed to appoint a second rapporteur. The OSCE rapporteur is in charge of "a fact-finding mission to Turkmenistan to examine concerns arising out of investigations resulting from the reported attack on 25 November on President Niyazov". He is tasked "to investigate all matters relating to the conduct of the investigations, including allegations of torture, and resulting developments which may constitute a particularly seistan of its OSCE commitments in the human dimension". Chosen for his impartiality, the rapporteur fulfilled his task with full independence and confidentiality. He submitted his report on the 25 February 2003.
2. The report begins with a description of the legal framework of the situation, both on the international and on the domestic levels. If Turkmenistan’s structures apparently respect the rule of law, it is in fact escaping international control, by avoiding reporting on its commitments and by using the absentee strategy during the meetings of the Human Dimension of the OSCE. On the domestic level, constitutional principles are violated by overlapping of the constitutional separation of powers and the absence of effective remedies.
3. The report then deals with the fact-finding mission, concerning the different facets of the repression, which is going on since the murder attempt of 25 November 2002 against President Niyazov. Large-scale violations of all the principles of due process of law, like arbitrary detentions or show trials took place. Not only has torture been used to obtain confessions, but the forced use of drugs was a means of criminalising the detainees, entailing lethal risks for them. A multiform collective repression fell on the “enemies of the people”, whereas forced displacement is officially announced in arid regions of the country, especially against peoples targeted on the ground of their ethnic origin. Even If the death penalty has been legally abolished, in practice, the survival expectancy of political detainees and displaced persons seems very low. Certain personalities, who were detained incommunicado, may have already been eliminated.
4. The report compiles a long list of individual cases illustrating different kinds of violations that are taking place in the framework of current repression. This list has been established on the basis of particularly reliable information from NGOs. It will be completed and updated, taking into account new available information. The greatest attention is required from the international community to this information. In such conditions, it is of the utmost importance that third States - especially the State Parties to the European Convention on Human Rights - should refuse any extradition request or “deportation” of Turkmen nationals required by this State.
5. The report ends with a series of precise recommendations. The necessity for the international community to further commit itself to preventing the isolation that Turkmenistan is inflicting to itself is particularly stressed. Following up on the situation is an absolute necessity, especially within the OSCE or the UN frameworks. New investigations are certainly required by OSCE bodies, which should urgently take up the situation, as well as the Rapporteurs of the UN Commission on Human Rights. The OSCE rapporteur wishes to alert the international community to the very serious risks entailed by the current situation with regard to peremptory norms of general international law.
The present report is only a starting point. It is indeed only a stage among others in the process triggered by the Moscow Mechanism. The Rapporteur’s mandate has itself some obvious limits:
Ratione materiae, since we were asked to concentrate on the follow-up to the November 25 2002, and not to generally assess the human rights situation in Turkmenistan, with respect to for example public liberties, minority rights, or economic, social or cultural rights of the population. However, the current crisis falls within a trend of previous violations, and only deepens their darkest features.
Ratione temporis, a strict timetable limits the report, while precious information is reaching the Rapporteur. In order to respect these time constraints, inherent to the Moscow Mechanism, the Rapporteur submits his report today, taking into account the 15 days prescribed time for the consultation of concerned States. In this respect, he regrets that the authorities of Turkmenistan, which should have been his primary source of information, have not yet contributed to the report and hopes that they will answer in great detail to the many questions raised.
Ratione personae, since the Rapporteur could not, in conformity with the Moscow Document requirements, go to Turkmenistan, but above all since he could not make any contact with persons residing in Turkmenistan. The Rapporteur was warned that the mere fact of trying to contact lawyers associated with current cases would constitute a risk to their security.
Despite or because of these limits, the report must be the starting point of a more comprehensive commitment of the OSCE, and beyond, of the participating States and International Organisations for the protection of human rights in Turkmenistan. It is not for the Rapporteur to reach a verdict on the political or economic implications of such a commitment. But when it comes to the legal aspects, with which he is concerned, he must underline the importance of a new vigilance in the light of an effective respect of the commitments of the human dimension, the rule of law, democracy and human rights. The permanent neutrality of Turkmenistan cannot be reduced to the absentee policy when it comes to the mere accountability of the implementation of international commitments, before OSCE human dimension meetings, UN treaty-bodies or ILO Committees. "Permanent Neutrality" cannot be a fig leaf for permanent human rights abuse.
Yet, this assessment, although limited in its object is already appalling. The contrast between the law as it is presented and the reality marked by terror and fright is mind-boggling. Only a return to the principles and commitments of the OSCE could allow Turkmenistan to get out of the maelstrom into which it is being driven. It is in the spirit of a necessary mobilisation of the International Community and of an indispensable co-operation of Turkmenistan in view of the implementation of all human rights that we present the following recommendations, that are either of a general nature undoubtedly utopian considering the present situation but nevertheless necessary in the future - or of a specific nature, and for immediate enforcement. The recommended measures may seem unrealistic, but they are nevertheless inescapable for any State governed by the rule of law and full member of the international community. Turkmenistan cannot constitute a "black hole" within the OSCE, a human rights desert. The isolation that Turkmenistan inflicts upon itself is the worst solution of all.
1. The first recommendation is to strengthen the guarantees inherent to the rule of law, with the creation of an independent Constitutional Court, which would be the guardian of the primacy of international law over domestic law, of separation of powers and of the review of the constitutionality of laws. Without a rigid Constitution, protected by effective remedies, the rule of law will remain unfinished and fragile.
2. International guarantees are an important element in the strengthening of domestic guarantees. In this regard, Turkmenistan has already accepted a series of important commitments. But they remain dead letter, first because the authorities do not respect their minimal obligations to co-operate with the monitoring bodies starting with the submission of periodic reports to the UN treaty monitoring bodies and second because they fail to provide sufficient information to the public. Turkmenistan should submit without delay the reports requested by the UN and the ILO bodies. Failing this, the General Assembly should reconsider the respect by Turkmenistan of resolution 50/80 of 12 December 1995, in reference to the purposes and principles of the UN Charter.
3. Moreover, Turkmenistan should confirm its commitment as a full member of the International Community by acceding to human rights treaties which it has not yet ratified, starting with the 1948 Convention against Genocide and the International Criminal Court Statute, as well as the new Optional Protocol to the UN Convention Against Torture of 1984.
4. On the domestic level, the priority is a full guarantee of the independence of the judiciary, in accordance with United Nations standards, as well as with the commitments under the OSCE Copenhagen Document. Similarly, effective justice relies upon the setting up of a judiciary worthy of the name and on an independent bar. The Rapporteur recommends that an immediate invitation be addressed to the United Nations Special Rapporteur on the independence of judges and lawyers to assess the situation in this domain. Programmes of international co-operation should be set up in priority in this field, as well as for the training of law enforcement officers.
5. In the same spirit, the rights of individuals belonging to civil society should be respected and the work of NGOs should be facilitated throughout the country. In this regard, the urgent appeal launched by numerous international NGOs in favour of the immediate release of Mr. Farid Tukhbatullin an environment defender whose peaceful and non-political commitment is pointed out by all NGOs should be heard without delay by the Turkmen authorities. In order to facilitate compliance with the OSCE commitments, a standard MoU with OSCE/ODHIR to implement projects in the field of the rule of law and strengthening of civil society ought to be signed by Turkmenistan.
6. Political trials that have followed the 25 November coup should be reviewed, either by appeal or through new trials, with full respect for the rights of the defendant, and with the guarantee of judicial observers, in particular representatives of NGOs, in accordance with OSCE commitments. Measures of harassment and collective deprivation of property should be put to an end.
7. In the expectation of new trials, urgent investigations on the prisoners conditions of detention should be carried out by the UN Special Rapporteur on Torture, as well as by the Working Group on Arbitrary Detention. Similarly, the UN Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions should be invited to investigate reports of deaths of persons imprisoned in connection with the alleged attempt of 25 November.
8. Turkmenistan should immediately put an end to forced displacement of populations, especially persons belonging to national minorities. It should also guarantee freedom of movement inside the country and freedom to leave the country for all Turkmen nationals, as well as for foreigners, and in particular facilitate transborder contacts. Facing this very threatening situation, the authorities should also invite the Special Representative of the UN Secretary-General on internally displaced persons for an emergency visit to Turkmenistan.
9. Turkmenistan should abandon discriminatory discourses or practices, based on a conception of “racial purity” which is contrary to all international principles. It should invite the UN Special Rapporteur on Contemporary Forms of Racism, Racial Discrimination, Xenophobia and Related Intolerance and respond without delay to the requests of the UN Committee for the Elimination of Racial Discrimination.
10. Turkmenistan should respect the Vienna conventions of 1961 on Diplomatic Relations and of 1963 on Consular Relations, and should allow, in particular, a consular protection for detained foreigners or bi-nationals.
11. Third States, and particularly the States parties to the European Convention on Human Rights, should refuse to extradite or to hand over Turkmen nationals who, in the current circumstances, are in danger of being subjected to torture or inhuman and degrading treatments. They should envisage the possibility of granting refugee status to all persons having a well-founded fear of being persecuted and co-operate with the UNHCR to this end.
12. Third States should also request the Turkmen authorities not to impede the distribution of foreign newspapers and the free access to international media and to electronic means of communication. The participating States should support the courageous action of the OSCE Representative on the Freedom of the Media.
13. It is recommended that this report be made public in its entirety including the annexes that the Russian translation be widely released, and that access to an electronic version be facilitated on the OSCE website.
14. It is in particular recommended to transmit this report without delay to the UN Office of the High Commissioner for Human Rights for distribution to all the participants to the 59th session of the Commission on Human Rights.
15. It is finally recommended to transmit the report to the other international organisations concerned, in particular the International Labour Organisation, the Community of Independent States, the Council of Europe, the EBRD, the ADB and the World Bank.
16. It is a last duty to the OSCE rapporteur to ask the Chairman in Office, as well as the OSCE Centre in Asghabat, to take care of the effective implementation of § 6 of Moscow Mechanism, “The participating States will refrain from any action against persons, organizations or institutions on account of their contact with the mission of experts or of any publicly available information transmitted to it”.
The Rapporteur’s intention is not to situate its action at the diplomatic or political level, but on the level of law and facts. A follow-up to the present report is necessary, not only within the framework of the OSCE, but also within the UN and, more generally, by the International Community as a whole. To quote President Vaclav Havel, "some international organisations are dying of being polite”. What is essential is that Turkmenistan may live. In this regard, the provisory assessment of the three tragic months that have followed 25 November is overwhelming. Any new delay in taking action would not only be a moral abdication but also a collective complicity.
I. THE OSCE RAPPORTEUR’S MISSION 7
A. The establishment of the Mission 7
B. The nature of the mandate 9
II. LEGAL FRAMEWORK 10
A. International Law 10
B. Domestic Law 13
III. FACT-FINDING MISSION 15
A. The so-called "Attempt of 25 November" 15
B. The first wave of repression 17
C. The due process of law 20
D. Conditions of detention 23
E. Diplomatic Implications 27
F. Collective sanctions 28
IV. INDIVIDUAL CASES 36
1. Moscow Mechanism
1.1 Document of the Moscow Meeting. 1991
1.2 Concluding Document of Helsinki. 1992
2. Related Correspondance
2.1 Letter from 10 Participating States to ODIHR Acting Director
2.2 Letter from the Acting Director of the ODIHR to President Niyazov
2.3 Unofficial translation of the letter from the Ministry of Foreign Affairs of Turkmenistan addressed to the Office of the Chairman of the OSCE Permanent Council
3. Constitution of Turkmenistan
4. Public report of the General Prosecutor about the investigation on the event of 25 November 2002
4.1 General Prosecutor’s TV-broadcast report (4 December 2002).
4.2 General Prosecutor’s TV-broadcast report (19 December 2002).
4.3 General Prosecutor’s TV-broadcast report (29 December 2002).
I. THE OSCE RAPPORTEUR’S MISSION
A. The establishment of the mission
The OSCE rapporteur’s mission was established pursuant to the Human Dimension Mechanism.
The human rights situation in Turkmenistan was discussed, inter alia, during Permanent Council meeting n°425 (7 December 2002) and n°426 (12 December 2002) with public statements of the Danish Presidency of the European Union (PC.DEL/992/02 and PC.DEL/1000/02) and of the United States Mission to the OSCE (PC.DEL/1006/02). In its "Statement of concern about arrests in Turkmenistan" (PC.DEL/1006/02), the US Mission invoked Paragraph 2 of the Moscow Mechanism: "In accordance with Turkmenistan’s OSCE commitments under the Vienna 1989 and Moscow 1991 Documents we request information concerning the whereabouts and charges against Mr. Berdiev and all others in custody in connection with the assassination attempt. We expect to receive this information, in accordance with the Moscow Mechanism, in writing, within 10 days".
During the same PC meeting, a statement by the delegation of Turkmenistan was delivered to offer "clarifications with regard to questions raised in the statement of the Chairman-in-Office, the report of Mr. Duve and the statements of the European union and various delegations" (PC.DEL/1004/02).
On 13 December a letter of the acting Director of ODHIR was sent to Ambassador Vladimir Kadyrov, Head of Delegation of Turkmenistan to the OSCE, and on 16 December a letter of the Chairman-in-Office, Minister for Foreign Affairs of Portugal, to Mr. Rashid Meredov, Minister for Foreign Affairs of Turkmenistan (CIO.GAL/105/02).
During Permanent Council meeting n°427 (19 December 2002), the Delegation of Turkmenistan was "authorised to transmit in writing the replies of the Turkmenistan authorities to the written inquiry received by us from the head of the United States delegation to the OSCE. We assume that the American delegation will distribute this document so that the delegation of other participating States have an opportunity to familiarise themselves with it" (PC.DEL/1022/02).
The following day, the delegation of Turkmenistan distributed a statement on behalf of the Ministry for Foreign affairs of Turkmenistan "in view of statements made by some delegations of participating States at the OSCE PC on 19.12.2002" (SEC.DEL/258/02). At the same meeting two written statements of the Ministry for Foreign Affairs of Uzbekistan were distributed at the request of its delegation (SEC/DEL/254/02 and SEC.DEL/255/02). Several oral statements were made, in reference to Paragraph 12 of the Moscow Document, inter alia, by Norway (PC.DEL/1023/02) and United States (PC.DEL/1025/02).
In a letter of 20 December 2002 to the Head of the Delegation of Turkmenistan to the OSCE, Ambassadors of ten participating States of the OSCE invoked Paragraph 12 of the Moscow Document Mechanism, "in order to establish a fact-finding mission to Turkmenistan to examine concerns arising out of investigations resulting from the reported attack on 25 November on President Niyazov. (They) expect the mission to investigate all matters relating to the conduct of the investigations, including allegations of torture, and resulting developments which may constitute a particularly serious threat to the fulfilment by Turkmenistan of its OSCE commitments in the human dimension".
During a special PC n°429 (30 December 2002), the EU made a new statement (PC.DEL/1027/02).
During PC meeting n°431 (16 January 2003), the OSCE representative on the Freedom of the Media, Mr. Freimut Duve, made a statement. The EU made a statement in response to this statement.
On 15 January 2003, the requesting States appointed Professor Emmanuel Decaux as first rapporteur and informed the acting Director of the ODHIR of the mandate of the fact-finding mission. On 16 January, the Director informed H.E. Saparmurat Niyazov of the use of the Moscow Mechanism by 10 participating States and, inter alia, of the time limit to appoint a second rapporteur.
On 22 January 2003, the Minister for Foreign Affairs Meredov came to Vienna and met with delegations of the 10 Participating States.
During PC n°433 on 30 January, the Greek Delegation, on behalf of the EU made a public statement (PC.DEL/57/03) as did the US delegation (PC.DEL/64/03).
A new letter of the acting Director of the ODIHR to H.E. Saparmurat Niyazov, on the 27 January, takes note of the absence of answer as a rejection of the possibility to appoint a second rapporteur and stresses the need for full co-operation with the single rapporteur mission.
In a letter dated 31 January 2003, the Ministry for Foreign Affairs of Turkmenistan recalled the previous meeting of Minister Meredov in Vienna and states its official position:
"In the presentation of the Minister of Foreign Affairs it was stated that investigation of this criminal case was conducted in strict accordance with the law, and with norms of international law. The degree of guilt for every participant of this serious crime was identified on the basis of the detailed examination of the facts, material evidences and circumstances surrounding it (...).
Moreover, the Delegations of the aforementioned OSCE participating States raised issues concerning the procedure of sending experts to Turkmenistan to examine unfounded information and pure fabrications, but avoided to solve the main issues of co-operation in the sphere of fight against crime and terrorism. Such an approach is absolutely unacceptable because it is based on mistrust and it insults Turkmenistan as an equal member of the OSCE.
Based on the above, the Turkmen side once again underlines that it is unacceptable to send a mission mentioned in the OSCE/ODIHR letter to Turkmenistan, and requests not to raise this issue with the Turkmen side in the future".
The OSCE rapporteur, beginning his mission, went to Vienna (7 and 8 February) and Warsaw (10 and 11 February) for talks with participating States and OSCE institutions. Taking into account the delay caused by diplomatic attempts to obtain a co-operation from Turkmenistan, the rapporteur announced his intention to present a preliminary report at the end of February and asked the ODHIR to make a factual press release in order to inform the public at large of the process under the Moscow Mechanism. For the rapporteur, publicity as such is an expression of public concern but also a way to get relevant information for the making of the OSCE report, all the more useful since the requested State decided not to co-operate. The rapporteur had other meetings in The Hague (23 and 24 February) before the final completion of his report.
B. The nature of the Mandate
It is, in itself, a challenge to be an OSCE rapporteur, especially in charge of a single rapporteur mission, without any useful precedent of the Moscow Mechanism in the last ten years. But it is even more challenging to have to present a report without the support of the "inviting State" as indicated by the representatives of Turkmenistan. In this situation, the mission of the rapporteur is crystal clear: he must first of all preserve the integrity of his mandate, in dealing effectively with the specific situation. In this regard, some preliminary remarks have to be made on the nature of this mandate.
First, the Human Dimension Mechanism is "a method of furthering respect for human rights, fundamental freedoms, democracy and the rule of law through dialogue and co-operation (...)" (Moscow, 1991, I §1). On one hand, the use of the mechanism is not an unfriendly measure or an expression of disrespect, but the fulfilment of an international commitment. As stressed by the Preamble of the Moscow Document and recalled in the Charter for European Security adopted in Istanbul 1999: "Participating States are accountable to their citizens and responsible to each other for their implementation of their OSCE commitments. We regard these commitments as our common achievement and therefore consider them to be matters of immediate and legitimate concern for all participating States" (§ 7). On the other hand, as expressly stipulated in the Moscow Document, "The inviting State will co-operate fully with the mission of experts and facilitate its work. It will grant the mission all the facilities necessary for the independent exercise of its functions. It will, inter alia, allow the mission, for the purpose of carrying out its tasks, to enter in the territory without delay, to hold discussions and travel freely therein, to meet freely with officials, non-governmental organisations and any group or person from whom it wishes to receive information" (I, § 6).
At this preliminary stage of the OSCE report, one can only regret the systematic non co-operation of the authorities of Turkmenistan that not only impairs its most basic international obligations but impedes, in itself, the completion of the fact-finding mission, even though Turkmen authorities used to stress their desire of transparency and taste for publicity. In the same way, during the meeting of the Cabinet of Ministers of Turkmenistan on December 16, 2002, President Niyazov, "outlining that the Turkmen State has nothing to hide from its people and world community", instructed the General Prosecutor of Turkmenistan to tell the public about the results of the investigations. More than ever, Turkmen authorities bear the burden of proof.
Regardless of this political procastrination, pursuant to the Moscow Document, the mandate of the OSCE rapporteur has to be completed: "The CSCE rapporteur(s) will establish the facts, report on them and may give advice on possible solutions to the question raised" (I, §11). In doing so, the main responsibility of the rapporteur is towards the implementation of the human dimension commitments and particularly the integrity of the Moscow Mechanism, on behalf of the whole community of OSCE participating States, including Turkmenistan. Three words can summarise the very nature of this mandate: impartiality, as a rapporteur is appointed as an expert "preferably experienced in the field of the human dimension, from whom an impartial performance of their functions may be expected" (I, § 3), full independence, in the exercise of his functions, notably towards participating States and OSCE institutions, and confidentiality, especially in order to protect sources of information, as stressed in the Moscow Document: "The mission may also receive information in confidence from any individual, group or organisation on questions it is addressing. The members of such missions will respect the confidential nature of their task" (I, § 6, al.2).
In this spirit of impartiality and independence, the rapporteur has to search for all relevant documentation from every side, namely - as he was lacking direct contacts that could have been afforded by an on the spot visit - statements of Turkmen authorities and official media as well as information from the world press and from international NGOs.
The rapporteur wishes to thank all the persons whom, in official or private capacities, brought their support and assisted with the completion of this report. He regrets that for obvious safety considerations he is not able to publish the list of this contacts, but he wants to underline the very professional contribution of NGOs which are fulfilling an irreplaceable task, such as Amnesty International, the International Federation for Human Rights, Helsinki Federation for Human rights, Memorial, Open Society, International Crisis Group and so on.
As it stands, this OSCE report aims at giving a factual picture, as objectively as possible - in spite of the practical limits imposed on his mission - of the human rights situation in Turkmenistan, following the so-called "attempt" on November 25. It must be stressed that, by nature, it is a preliminary report, which ought to be complemented with new information and evidence, due to the absence of visit of the rapporteur in the country and the refusal of any co-operation on the Turkmenistan’s side. Even if this refusal to co-operate might seem a self-evident characterisation of the situation, the OSCE rapporteur preferred to disregard such presumption and have an impartial look at the legal principles and the established facts.
According to the time-limit set by the Moscow Mechanism, Turkmenistan has a last chance to co-operate, as "The report of the rapporteur(s) containing observations of facts, proposals or advice, will be submitted to the CSCE Institution no later than two weeks after the last rapporteur has been appointed. The requested State will submit any observations on the report to the CSCE Institution, unless all the States concerned agree otherwise, no later than two weeks after the submission of the report" (§ 11). It must be stressed that the need for further clarification for a number of pending issues does not question the accuracy of the factual analysis and legal evaluation already presented in the report.
II. THE LEGAL FRAMEWORK
Before the establishment of facts, it is necessary to have an overview of the legal framework in which the investigations following the November attempt took place. The Constitution of Turkmenistan adopted in 1992 and modified in 1995 and in 1999 seems to offer a "model" for the respect of the Rule of law, in accordance with the principles and commitments of the OSCE. "Turkmenistan as a fully-fledged member of the world community, strictly complies with the principles and norms of the United Nations, which have taken and continued to take priority in the country’s foreign-policy strategy" states the Ruhnama.
With this in mind, the public institutions of Turkmenistan should thus operate on a strong legal basis, either in international law or in domestic law.
A. International Law
The Ruhnama presenting the essence of the "State of Turkmen", underlines that "Turkmenistan recognises the priority of the generally accepted standards of international law". More specifically, "Turkmenistan accepts international human rights standards accepted by other members of the international community".
In a recent report to the UN Security Council, Turkmenistan recalled these basic principles: "Under Article 6 of the Constitution of Turkmenistan, the legislation of Turkmenistan recognises the supremacy of generally accepted rules of international law. In that connection, the provisions of international treaties to which Turkmenistan is a party have direct force of law "(S/2002/580).
Turkmenistan is a Member State of the United Nations since 2 March 1992. This State is bound by the main international human rights instruments in its own capacity, after accession to these instruments, as well as a successor of the former Soviet Union. In the same way, Turkmenistan is a party to the core instruments of the International Labour Organisation. But on a more practical level, there is no co-operation from Turkmenistan, as it does not fulfil its international obligation to report to the treaty-bodies or to the special procedures of the Human Rights Commission, as well as to the ILO procedures.
Turkmenistan acceded to the International Covenant on Civil and Political Rights and to its first Optional Protocol recognising the competence of the Human Rights Committee to receive individual communications on 1 May 1997. It acceded to the Second Optional Protocol aiming at the abolition of the death penalty, with entry into force on 11 January 2000. However it never presented to the Human Rights Committee its first report, overdue since 31 July 1998.
More recently, on 25 June 1999, Turkmenistan acceded to the UN Convention Against Torture, with entry into force on 25 July 1999. Its preliminary report is due since July 2000.
Turkmenistan acceded to the Convention on the Elimination of Racial Discrimination on 29 September 1994. Its first report was due for 29 October 1995. In 2002, the CERD decided to examine the situation of Turkmenistan without any written report and adopted its concluding observations on 21 May 2003 (CERD/C/60/CO/15). The CERD declared inter alia: "Although Turkmenistan has ratified the main international instruments in the field of human rights, it has not reported to any United Nations treaty body. The State party, moreover, has not responded to communications sent by special rapporteurs of the Commission on Human Rights." (§ 2) The Committee also remarked that the State did not take any action concerning "the proposal made by the High Commissioner for Human Rights in February this year relating to the conduct of a human rights needs assessment in Turkmenistan. The aim of such an assessment is to formulate a programme to assist the State party in developing its national capacities to promote and protect human rights." (§ 7) On the substance, the Committee which "expresses deep concern about grave allegations of human rights violations in Turkmenistan, both in the civil and political, as well as social, economic and cultural domains and, in connection with Article 5 of the Convention" (§ 3) urged in vain the Turkmen Government to start "the dialogue with the Committee ... as soon as possible." (§ 8) (CERD/C/60/CO/15).
Thematic rapporteurs of the UN Human Rights Commission intervened several times on the basis of allegations of violations. In 2002, the Working Group on Arbitrary Detention (one appeal concerning one person), the Special Rapporteur on Torture (two urgent appeals, one of them jointly with the Special Rapporteur on Freedom of Opinion and Expression) and the Special Rapporteur on Freedom of Religion and Belief (one communication) made interventions.
The situation is similar within the ILO. A member of this Organisation since 24 September 1993, Turkmenistan ratified six international labour conventions on the 15 May 1997, but refused to report to the control bodies. Like previous years, the ILO Committee of Experts on the Application of Conventions and Recommendations (CEACR) had to adopt an ordinary General Observation concerning Turkmenistan: "The Committee notes with regret that, for the third year in succession, the reports due have not been received. It also notes that the first reports due since 1999 on Conventions n°29, 87, 98, 100, 105 and 111 have not been received. The Committee trusts that the Government will not fail in future to discharge its obligation to supply reports on the application of ratified conventions, in accordance with its constitutional obligations and, if necessary, requesting appropriate assistance from the Office".
Finally, the European Bank for Reconstruction and Development (EBRD), whose Statute makes express references to the OSCE principles, could only record the political failing of Turkmenistan, as well as its diplomatic absenteeism, whereas at the same time it was present in the field through several investment projects. As stated by the EBRD President in a letter dated 25 July 2002 and addressed to President Niyazov:
"In my letter to you of 24 May 2002 I informed you that in July 2002 the EBRD Board of Directors would discuss its new Strategy for Turkmenistan. I also invited the Turkmenistan authorities to send a representative to London in advance of the Strategy discussion, in order to give the Board and the country an opportunity to discuss directly the situation as well as political and economic transition issues in Turkmenistan.
The Strategy for Turkmenistan was approved by the Board of Directors as originally planned on 10th July 2002. Unfortunately, despite the Bank’s readiness, a dialogue with the Turkmenistan authorities could not take place before the Strategy’s approval.
The new Strategy is based on the assessment that in the last year there has been little evidence of improvement regarding the Turkmenistan authorities’ commitment to, or the application of the principles of multi-party democracy, pluralism and market economics in accordance with Article 1 of the Agreement Establishing the Bank. The Strategy concludes that the state of political and economic reform in the country is unsatisfactory and, therefore, that the Bank is seriously constrained in its mission to further the country’s transition(…) I hope that the political and economic reforms in Turkmenistan in the period ahead will be such as to allow a much increased investment activity by the EBRD and also that the dialogue between the Bank and Turkmenistan will strengthen."
If one considers that in addition to this tactic consisting of being silent and absent, Turkmenistan is systematically using the “chaise vide” tactic in the meetings of the OSCE on the implementation of the Human Dimension commitments, it is fair to wonder about the dangerous drift which, little by little, affects the meaning given by this country to the concept of “neutrality”. When the notion of permanent neutrality of Turkmenistan was recognised by the General Assembly in a resolution of 12 December 1995 (Res 50/80), it was stressed that this permanent neutrality “will contribute to the achievement of the purposes of the UN”. On December 27 1999, the People’s Council of Turkmenistan ratified the new foreign policy aiming at “democracy, humanism and respect for human rights and freedoms”.
A year later, a Declaration adopted on 11 December 2000 transmitted to the General Assembly (A/55/732), stressed:
“The philosophy of neutrality has become an important factor for conflict-free internal development, for the creation in multi-ethnic Turkmenistan of conditions of harmony among faiths, races and ethnic groups, political stability and social partnership, and for the consistent humanisation of all aspects of public life. In Turkmenistan citizens are guaranteed equal rights irrespective of ethnic origin, skin colour, sex, age, religion or political views. Turkmenistan was the first State on the Asian continent to pass legislation abolishing the death penalty. All of this is furthering the spiritual education of the Turkmen people in lofty, life-affirming ideals and the implementation in society, as the foundation of the national philosophy of humanist values - peace, justice, openness, tolerance, mutual respect - which are gradually penetrating the flesh and blood of the Turkmen people (...) The fifth anniversary of Turkmenistan’s neutrality is a significant date in the history of the Turkmen people. Five years of neutrality have provided them with the opportunity for peaceful and constructive labour in conditions of internal harmony and stability, the laying of a stable material and spiritual foundation for accelerated economic reform, the gradual introduction of democratic standards and institutions, and the elevation of the country in the near future to the ranks of the world’s modern developed States”.
Significantly, the words “human rights” do not appear in this appraisal. As a matter of fact, in practice, Turkmenistan does not comply with its general obligations of international co-operation under the Charter, nor with the conventional obligations it has voluntarily accepted. Neutrality appears as the facade of an increasingly isolationist policy, which has enabled this small country to escape international attention and legitimate concern of international organisations. This disguised neutrality must not be a permanent contempt of the international community as well as a permanent alibi to violate with impunity its international obligations in the field of human rights.
B. Domestic Law
It is not necessary in this introductory part to dress a full picture of the political system of Turkmenistan, but to stress the legal principles enshrined in the Constitution.
In the field of the human dimension and more particularly, as regards the protection of Human Rights, "the government and society [of Turkmenistan] place the highest value on the person" and "the government protects life, honour, dignity, freedom, individual inviolability, and the natural and inalienable rights of the citizen" (Article 3 of the Constitution of Turkmenistan). This protection encompasses foreign citizens and stateless persons (Article 8) and is reaffirmed in Article 16, which reads: "[t]he rights of the person are inviolable and inalienable. No one may deprive another person of any rights or freedoms or limit her or his rights in any manner other than in accordance with the Constitution and laws. Any list of rights and freedoms of the person in the Constitution and laws may not be used to deny or diminish other rights and freedoms".
The Constitution enumerates in practical and concrete terms the Rights and Liberties that it protects. Thus, the right to life is protected by Article 20, as revised in 1999, which provides: "In Turkmenistan, the person has the right to life and is free to achieve him or herself. No one can be deprived from his right to life. The right of every person to have a free life is protected by the State on the basis of the law". Furthermore, in accordance with peremptory norms of general international law, Article 21 of the Constitution states: "No one may be subjected to torture or cruel, inhumane, or degrading treatment or punishment". Likewise, the same provision provides that "no one may be subjected without her or his consent to medical or other experiments".
As regards criminal repression, the citizens of Turkmenistan are protected from any violation of the home (Article 22) as well as from any arbitrary arrest by Article 21 which provides : "A citizen may be arrested only on condition of the existence of grounds specifically indicated by law, by decision of a court, or with the approval of a procurator. In situations, specifically indicated by law, not allowing delay, a governmental organ authorized to do so has the right temporarily to detain citizens".
The Constitution of Turkmenistan establishes also the principle of the legality of sentences and offences in the same Article 21 which states: "A citizen may not be limited in her or his rights, deprived of the rights which belong to her or him, convicted, or subjected to punishment, except in exact accordance with the law and as the decision of a court". Moreover, Article 43 states : " A law, worsening the condition of a citizen, may not be ex post facto. No one may be liable for an act which at the time of its commission was not a violation of the law".
The Constitution of Turkmenistan also recognizes the right to professionnal legal assistance at any stage of the legal process (Article 108) and prohibits to force a person "to give testimony or explanations against herself or himself or close relatives. Evidence acquired under the influence of psychological or physical pressure or other unlawful means does not have legal force". (Article 42)
With respect to the strictly judicial stage, whatever is the court involved "trials are open. Closed hearings for a case are only allowed when anticipated by law and with adherence to all rules of legal procedure" (Article 105). These rules of legal procedure are also listed in the Constitution. Article 108 states: "Justice is implemented on the basis of the adversarial nature and equality of parties. Parties have the right to appeal the decisions, sentences, and other judicial decisions of any of the courts of Turkmenistan". Moreover, even if "[t]he legal process is conducted in the state language" i.e, Turkmen language, "[p]ersons participating in a case who do not speak the language of the legal process are ensured the rights to acquaint themselves with the materials of the case, to participate in the legal proceedings through an interpreter, and to speak in the court in their native language" (Article 106).
Even if Article 19 of the Constitution construes "moral demands" as a limit to the exercise to the recognised rights, the whole of these protection provisions have direct effect since they are provided for in the Constitution. Moreover, "[l]aws and other legal acts which contradict the Constitution have no legal force" and, more precisely, "[l]egal acts which affect the rights and freedoms of citizens and for which there is no general notice are invalid from the moment of their adoption" (Article 4). Furthermore, the constitutionality of normative acts emanating from State and governmental organs is ruled upon by the Parliament (Article 67, §7). However, given the fact that the control organ is a political one, there does not seem to be an efficient control based solely on legal considerations.
From a practical point of view, "The judicial power is intended to defend the rights and freedoms of citizens" (Article 99). The Independence of the judiciary is established by Constitution’s Article 101 . Although "Judges of all courts are appointed by the President for terms of five years" (Article 102), the fact that "a judge may be dismissed from office without her or his consent only by decision of a court and for a reason enumerated in the law"(Article 102) does not appear to challenge the principle of separation of the executive, legislative and judicial powers established by Article 4 of the Constitution. However the subordination to the President of the General Prosecutor (Article 112) even though the latter "supervises the legality of law enforcement investigative activity, criminal investigations, and investigative materials" seems more problematic as regards the respect of the separation of powers.
The absence of separation of powers is manifest within the Halk Maslahaty where the Chairperson of the Supreme Court and the General Prosecutor sit (Article 48). This Constitutional organ has the competence in particular to review and amend the Constitution (Article 50). Consequently, the protection of fundamental rights constituted by the Parliament’s prohibition to delegate its legislative power in the area of criminal legislation and legal process (Article 66) can be bypassed by a modification of the Constitution operated by the Halk Maslahaty. Accordingly the Constitution enshrines the two main elements of the notion of the rule of law: the separation of powers and the principle of legality. But the lack of an independent Constitutional Court prevents the above principles from being effectively protected. There are no available remedies to enforce the primacy of international law on domestic law nor to review the constitutionality of laws.
Furthermore, the very notion of the rule of law - that is the legal security that is inherent to the rule of law - is permanently called into question by the fact that the Constitution is flexible and that the confusion of powers is institutionalised. If the Turkmen Constitution were to respect fully the Human Dimension commitments on the rule of law, it should first set precise rules to govern the use of constitutional power and, second, create a constitutional court with the competence to review the constitutionality of laws.
III. THE FACT-FINDING MISSION
A. The so-called "Attempt of 25 November"
The starting point of the investigation is the attempt on the life of President Niyazov. But the circumstances of this attempt are surrounded by mystery. The situation in the country was apparently calm, despite the high level defections and the repeated purges that shook up for the first time the state security apparatus. Like every year, President Niyazov signed on 23 November 2002 an order for the pardon of nearly 8,000 prisoners in accordance with the Law on Pardoning and Amnesty in Turkmenistan, on the occasion of the Holy Gadyr Night 26 to 27 November.
As stressed by the Turkmen authorities themselves, in their national report of May 2002 to the Counter-Terrorism Committee pursuant to Security Council Resolution 1373 (2001) (S/2002/580): "In Turkmenistan, there are no organisations either directly or indirectly linked to terrorism (...) In order to avert crimes directly or indirectly related to terrorism, the law-enforcement organs of Turkmenistan in their day-to-day activities are constantly performing work of a routine preventive nature (...) The law-enforcement organs of Turkmenistan in their day-to-day activities within their field of competence, implement measures to prevent terrorism and arms-and-drug-trafficking, and combat organised crime. In this connection, on the basis of international instruments and the national legislation of Turkmenistan, they maintain the relevant co-operation with the competent organs of other states, including exchange of the necessary information". In a letter dated 4 October 2002, the Chairman of the Counter-Terrorism Committee requested Turkmenistan to provide a supplementary report by 27 December 2002 (S/2002/1162). This report is still awaited.
Taking into account those measures, which show the extreme vigilance of national authorities, the attempt constitutes a surprise. It is even more surprising given the fact that when the attempt was officially announced, the President found himself in the capacity to describe it very precisely, with all its ins and outs. Yet it was immediately said that “President Niyazov was not hurt and even claimed not to have noticed the incident while it took place and have been informed about it upon his arrival at his office”. Making the assessment of the affair, on 30 December, when adressing to the extraordinary 13th session of the People’s Council of Turkmenistan, President Niyazov said: “Some foreign leaders informed me some six-seven months ago, four months ago, that there are people who would like to stage a revolt in your country in Sanjar (November). But I didn’t pay attention to this because we believe our people. Such kind of dishonest people, hired dishonest people, came to our country to carry out a coup d’etat. In order to hide and whitewash their dishonest deeds, they tried to address honest people. So people who don’t even know their native language and religion and who are completely dishonest tried to become the leaders”.
Nearly two months after the incident (on 25 January 2003), the President commented this apparent contradiction in the following way: "Niyazov says he ignored warnings. Our great fault was that we have been too complacent and did not expect such things might occur. Though I received a couple of warnings that there were such plans I simply ignored them because I was sure that nothing of this kind could happen and that our people would not accept it". Finally, while adressing the military units, for the State Flag speech on his 63th birthday (on 19 February 2003), President Niyazov seemed to expel his enemies of history: “You courageous chaps should know from past history that never in Turkmen history has there been a traitor – not in good times nor in times of misery. The Turkmens never knew what treason was and never did they betray their homeland and their nation. Never did they set a plot against their own people and nor did they allow others to fool them”.
About how the attempt really happened, several official versions followed one another. The President announced himself the attempt with very precise explanations: "President Niyazov said his political opponents - four former government ministers - organised the attack. In a televised speech, he said the gunmen, who allegedly fired shots at his motorcade were detained. Speaking at an emergency cabinet meeting the same day as the assassination attempt, Niyazov said a truck pulled out and blocked the path of his car. Attackers then opened fire on the presidential convoy for the truck and two other vehicles. The president said the truck ran over a traffic police officer, who was hospitalised and underwent surgery. The Interfax news agency reported one of the president’s bodyguards was injured". The semi-official Turkmenistan.ru indicated that at least two attackers were killed at the scene of the incident. The website went on to say "several of the criminals were taken in custody, the remaining ones succeeded in going in hiding".
On 26 November, the presidential spokesman Serdar Durdiev added that “16 people have been arrested in connection with the assassination attempt, four of whom are citizens of Georgia”. At the same time, Memorial said a more accurate figure would be closer to 100. Georgia’s Head of the State Intelligence Department Avtandil Isoseliani said ethnic Georgians detained in Ashgabat did not take part in the assassination attempt on President Niyazov, but were detained because they did not have Turkmen visas.
During the "full report" presented on Watan News Program on December 18 by Prosecutor General Mrs. Gurbanbibi Atajanova, she mentioned circumstances that
"were revealed by the investigation commission during the preliminary investigation of organised terror acts that took place on November 25, 2002, approximately at 7:14 a.m. along Turkmernbashi road of Ashgabat city (...) In the early morning, member of the criminal group, senior engineer of the Institute "Turkmensuwdesga" (Turkmen Water Facilities) Mr. Hatamov Annamurad waited along Archabil highway in his car and saw the Presidential cortege heading to the Presidential Palace, and informed Guwanch Jumayev by saying the coded phrase "I am coming to work". At approximately 7:10 a.m. in the morning on November 25, 2002, when our dear President, Saparmurat Turkmenbashi the Great was driving to his Palace by Turkmenbashi Road of Ashgabat and after he passed nearly Yashlar Street, they started trilateral shooting from machine guns and rifles and created a danger that could have resulted in human losses and thus violated the public security. However, criminals could not execute their criminal act till the end and escaped from the place of the incident. Their intentions to destroy the true legal government in Turkmenistan and forcefully take over the government by using arms did not succeed. Hostile bullets did not hit our dear President, our esteemed leader Sparmurat Turkmenbashi the Great and he was saved from the bullets of criminals During the shooting, the bullet shot by criminals wounded four soldiers of State Road Traffic Control Service, namely Halmyradov, Akylyev, Achylov and Bashimov. Currently they successfully recovered and checked out from the hospital".
The "testimony" of Mr. Hatamov appears in the same TV report:
"On November 25, 2002, I woke up and went to the said place with my car alone and stood nearby the intersection of Garashsylzlyk and Archabil roads at 6:15 a.m. There were two officers of State Road Traffic Control Service in the intersection of Grashsyzlyk and Archabil roads. As I remember at 07:05 a.m., Presidential cortege consisting of seven cars with two Mercedes cars with sirens on the top in the front followed by the Presidential Mercedes, which were followed by four other cars. Once I saw, I informed them as agreed by saying, "I am coming to work". So, whoever had walkie-talkie should have heard me. Our criminal intentions on that day did not succeed and on the same day after 20:00 (o’clock) when I was coming from work, I threw my walkie-talkie to the Garagum Channel passing nearby the Shor town".
This unique testimony is obviously incoherent. It is indeed hard to believe that a car could stand still during fifty minutes at a sensitive crossroad, in the view of security officers, without drawing their attention to it. Furthermore, one can legitimately wonder about the reasons to expose a watcher, as the presidential cortege is driving down the same way every day, at the same hour, with a remarkable regularity. It is not said whether the conversation has been intercepted and in which conditions the cortege has been attacked. It has to be recalled that the presidential cortege is driving at high speed on a route, which is carefully checked hours before. It is thus hard to see how the road police did not notice the presence of a suspicious car parked at the first crossroad but also of three other cars packed with weapons on the very place of the attempt. In the absence of more precise information, one can only be surprised by this contradiction: on the one hand, the attempt was hardly noticed, and on the other hand, it was almost immediately described in explicit detail.
Furthermore, very little information was made public about the murder attempt itself, whereas the attention was focused on the coup that otherwise should have followed. It would have been nevertheless indispensable to examine the place of the attempt, to reproduce bullet impacts on the walls and to study the ballistic report, to proceed to forensic expert evaluation and to meet wounded persons and other witnesses.
Failing that, two conclusions can be drawn, based on the current state of the investigations. First, it is not possible to decide between the different scenarios of the murder attempt (which is to be condemned whomever it comes from and whatever its purpose). Second, the suddenness of the announcement made by President Niyazoz immediately after 25 November, not only challenges the principle of the presumption of innocence but also casts doubts on the credibility of the official version.
B. The first wave of repression
According to a credible source, during the first days, a few hundred persons were arrested, but some of them, especially women and young persons, were freed with the obligation not to leave. According to one source, 54 persons were charged with the attempt. Another source gives the number of 67 persons. There are few dozens of persons more who were arrested being caught by the wave. The overall number of those who were accused of criminal charges and will be indicted is over 100 including relatives and those charged on other grounds. In practise, there are three groups of persons repressed: those accused of being directly connected with the attempt, relatives of these persons, against whom charges have been artificially created and finally, persons who have been targeted on political grounds without any connection with the so-called attempt.
It is neither possible nor useful for the Rapporteur to find out whether or to what extent there was a provocation, whether the failed attempt was a means of short-circuiting another plot, as the clandestine presence of Mr. Shikhmuradov could suggest. In any case, the gross failure of the murder attempt will be taken as a pretext for a general repression against the whole spectrum of the regime opponents. Whatever the involvement of the ones or the others in this provocation, the essential thing is to determine if due process of law has been respected for each of the accused.
In his public announcement of the attempt, given at an extended meeting of the Cabinet of Ministers on November 25, President Niyazov accused the opposition in exile, namely the former Foreign Minister Mr. Shikhmuradov, the former Chairman of the Central Bank, Mr. Orazov, the former Ambassor to Turkey, Mr. Hanamov and a former agriculture deputy-minister, Mr. Ykymov of having organised it. Large-scale investigations began immediately. The office of the General Prosecutor of Turkmenistan filed a criminal case against 16 alleged suspects involved in the attempt while the Presidential Spokesperson confirmed the accusation to the aforementioned former officials and added that some unidentified Russian politicians protected them. Officially, according to a press conference of the Turkmen Ministry of Foreign Affairs, on November 26, 16 arrests took place including four foreigners. According to several sources, more than 100 persons were detained as suspects and investigations involving questioning of entire residential blocks of the area where the attempt took place were going on. Others have allegedly been detained or questioned in connection with past association with other accused.
On December 2, the General Prosecutor announced that a number of 23 persons had been arrested as being involved in the attempt, three of whom were Chechen citizens, another six of Turkish nationality and one American. The nationality of one foreigner has not been established. According to the General Prosecutor, "it was proven that former Foreign minister Boris Shikhmuradov masterminded the plot from Russia. He wanted to take power in Turkmenistan through force and to change the existing constitutional order". Guvanch Dzumaev, a Turkmen businessman was accused of being the attack’s main organiser in Turkmenistan. In his taped confession, Dzumaev said he acted on orders from Shikhmuradov. Dzumaev’s father, son and younger brother are also under arrest and the businessman pleaded for clemency for them.
At an extraordinary meeting of the Cabinet of Ministers, President Niyazov called for a review and reinforcement of the existing legislation concerning foreign nationals visiting and residing in Turkmenistan. The President announced that he would issue a decree on the subject. Foreign nationals are already required to register at the police indicating their place of residence as well as the itinerary of their trip in Turkmenistan in case of business and tourist trips. President Niyazov ordered the creation of a new special office whose task it would be to interrogate all foreign citizens upon their arrival in Turkmenistan to find out "who is coming to the country, for what purpose, for what period of time, and when they will leave. Moreover this office should clarify the person’s past, where he goes, with whom he meets. That should be an obligatory procedure. Only then will there be peace in the country".
The President announced also daily television broadcasts in which representatives and spokesmen of the Ministry of Interior, Ministry of National Security and the Office of the General Prosecutor will inform the public about the results of the ongoing investigations. Accordingly, on December 4, the General Prosecutor presented a first detailed report on the attempt (cf. Annex X).
A new step in escalation was the arrest of Mr. Batyr Berdiyev, former Minister of Foreign Affairs and the long-time Turkmen representative to the OSCE on 7 December 2002. After having been questioned on 27-29 November he was released afterwards. He was not contacted again until 7 December 2002 when he was asked to come again to the Ministry of the Interior. Th