A/HRC/45/13/Add.1
work to develop a new Criminal Code does not include consideration of that issue. In its
response to the present report, the Government referred to the existence of a range of
offences, such as abduction and murder, among others. The Working Group highlights the
fact that reference to a range of existing offences is not sufficient to fulfil the requirement
under article 4 of the Declaration, as enforced disappearance is a single complex crime that
should be criminalized as such. The Working Group urges the relevant authorities and the
national working group tasked by the Government with the development of the new version
of the Criminal Code of Tajikistan to consider including the criminalization of enforced
disappearance as defined in international law, including various modes of criminal liability,
command or superior responsibility and the continuous nature of the crime. Such legislation
should ensure that amnesties are not applicable for the crime.
24.
The Working Group notes that ratification of the Convention and the introduction of
enforced disappearance as an autonomous crime would help address the limited awareness
in the country of the concept of enforced disappearance (see para. 17 above). Those
initiatives should be accompanied by extensive training for members of law enforcement,
legal professionals and the public on the issue.
25.
As indicated above, the Working Group welcomes the amendments to the Code of
Criminal Procedure adopted in 2016. It also welcomes the amendments to the Act on
Procedures and Conditions for the Custody of Suspects, Accused Persons and Defendants
and the inter-institutional guidelines, which strengthened the basic legal safeguards against
enforced disappearances of a short duration following initial apprehension and arrest of
those suspected of committing crimes. If properly implemented, the new legal provisions
will serve to prevent short-term enforced disappearances.
26.
The applicable legislative provisions now provide that arrest begins from the
moment of actual restriction of freedom of movement and freedom of action of an
apprehended person, and provide, inter alia, for the right to immediate notification of an
adult relative and the service of a lawyer. Furthermore, they require the urgent transfer of
an apprehended person from the location of his or her apprehension to, and immediate
registration of his or her arrival at, the agency responsible for criminal investigations. Entry
in the register should include, inter alia, information about the specific date and time at
which the suspect’s relative was notified about the arrest. In addition, there is a requirement
to draw up a detention protocol within three hours of conveying a suspect and before his or
her detention at the temporary detention facility. The protocol should include a range of
information including the identity of the officers involved and the details of the notification
of the suspect’s relative. 2 Within 12 hours of the time of initial apprehension, the
investigative officer is obliged to inform the prosecutor about the arrest.
27.
While those developments are positive and important, further improvements are
necessary. In particular, the procedural guarantees described above should be extended to
all acts of apprehension, including administrative apprehensions and arrests, which are
apparently widely used. Furthermore, breaching notification and registration requirements
should be subject to an appropriate sanction and violations should be systematically
punished. Most importantly, those rules and procedures should be implemented in practice;
information received indicates that practical implementation is lacking (see sect. V. B
below).
28.
The Working Group recalls that, in order to prevent secret detention – a form of
enforced disappearance – article 10 of the Declaration requires that any person deprived of
their liberty should be held in an officially recognized place of detention and, in conformity
with national law, should be brought before a judicial authority promptly after detention.
Accurate information on the detention of such persons and their place or places of detention,
including transfers, should be made available promptly to their family members and their
lawyer. An official up-to-date register of all persons deprived of their liberty should be
maintained in every place of detention and all States should take steps to maintain
centralized registers. However, the Code on the Implementation of Criminal Punishment
has not been amended and continues to provide that family members must be notified
2
Code of Criminal Procedure, arts. 6 and 94, and inter-institutional guidelines, paras. 7–8, 10–14 and
17.
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