Human Rights Committee
Concluding observations on the second periodic report of Turkmenistan *
1.The Committee considered the second periodic report of Turkmenistan (CCPR/C/TKM/2) at its 3343rd and 3344th meetings (see CCPR/C/SR.3343 and 3344), held on 8 and 9 March 2017. At its 3364th meeting, held on 23 March 2017, it adopted the present concluding observations.
A.Introduction
2.The Committee welcomes the submission of the second periodic report of Turkmenistan and the information presented therein. It expresses appreciation for the opportunity to renew its constructive dialogue with the State party’s delegation on the measures taken during the reporting period to implement the provisions of the Covenant. The Committee is grateful to the State party for its written replies (CCPR/C/TKM/Q/2/Add.1) to the list of issues (CCPR/C/TKM/Q/2), which were supplemented by the oral responses provided by the delegation.
B.Positive aspects
3.The Committee welcomes the adoption by the State party of the following legislative and policy measures:
(a)The human rights provisions in the new Constitution of 14 September 2016;
(b)The Citizenship Act, on 22 June 2013;
(c)The National Human Rights Action Plan for 2016-2020, on 15 January 2016;
(d)The National Action Plan on Gender Equality for 2015-2020 and the Act on State guarantees of equal rights and equal opportunities for women and men, on 22 January 2015 and 18 August 2015, respectively;
(e)The National Action Plan to Combat Trafficking in Persons for 2016-2018, on 18 March 2016.
C.Principal matters of concern and recommendations
Views under the Optional Protocol
4.The Committee remains concerned about the State party’s continuing failure to implement the Views adopted by the Committee under the Optional Protocol and regrets that the information requested on compliance with the Views adopted in specific cases remains outstanding. It is also concerned about the lack of effective mechanisms and legal procedures for authors of individual communications to seek, in law and in practice, the full implementation of the Views (art. 2).
5. The Committee reiterates its previous recommendation (see CCPR/C/TKM/CO/1, para. 5). The State party should take all measures necessary to ensure that appropriate procedures are in place to give full effect to the Committee ’ s Views so as to guarantee the right of victims to an effective remedy when there has been a violation of the Covenant. It should promptly and fully comply with all Views issued with respect to it.
Anti-discrimination framework
6.The Committee is concerned that: (a) national legislation lacks consistency regarding the prohibited grounds of discrimination and only certain legislative acts contain an open list of prohibited grounds including “other status or circumstances”; (b) the current legal framework does not afford protection against discrimination on all the grounds prohibited under the Covenant, including sexual orientation and gender identity (arts. 2 and 26).
7. The State party should take measures, including by considering adopting a comprehensive anti-discrimination law, to ensure that the relevant legal framework: (a) provides adequate and effective protection against all forms of discrimination, including in the private sphere; (b) prohibits direct, indirect and multiple discrimination, in line with the Covenant and other international human rights standards; (c) contains a comprehensive list of grounds of discrimination prohibited under the Covenant, including sexual orientation and gender identity; and (d) provides for access to effective and appropriate remedies for victims of discrimination.
Discrimination and violence on grounds of sexual orientation and gender identity
8.The Committee remains concerned (see CCPR/C/TKM/CO/1, para. 21) about the criminalization of sexual relations between consenting adults of the same sex, punishable with imprisonment of up to two years, and about the State party’s argument that homosexuality contradicts its culture. It is also concerned about discrimination against and social stigmatization of lesbian, gay, bisexual and transgender persons, including violence, arbitrary arrests and detention and other abuses perpetrated on the basis of sexual orientation and gender identity with total impunity (arts. 2, 7, 9, 17 and 26).
9. While acknowledging the diversity of morality and cultures internationally, the Committee recalls that State laws and practices must always be subject to the principles of universality of human rights and of non-discrimination and that a failure to comply with the obligations contained in the Covenant cannot be justified by reference to political, social, cultural or economic considerations within the State. The State party should: (a) decriminalize sexual relations between consenting adults of the same sex with a view to bringing its legislation in compliance with the Covenant; (b) put an end to the social stigmatization of homosexuality; and (c) ensure that no form of discrimination or violence against persons based on their sexual orientation or gender identity is tolerated and that all such cases are properly investigated and sanctioned.
Gender equality
10.While welcoming the constitutional provision recognizing equal rights and opportunities for men and women (art. 29) and other legislative and policy measures to promote gender equality, the Committee remains concerned (see CCPR/C/TKM/CO/1, para. 8) about the continued underrepresentation of women in the public and private sectors, particularly in decision-making positions, and about the prevalence of stereotypes regarding the role and responsibility of women, including in the Labour Code, which still restricts women’s choice of employment based on stereotypical assumptions (arts. 2, 3 and 26).
11. The State party should step up its efforts to achieve within specific time frames an equitable representation of women in the public and private sectors, particularly in decision-making positions, including in legislative and executive bodies and the judiciary, if necessary through appropriate temporary special measures, to give effect to the provisions of the Covenant. It should promote and advance gender equality to counter stereotypes on the roles and responsibilities of women in the family and society at large through public awareness, education and training programmes, and by revising provisions in the Labour Code that justify restrictions on women ’ s employment opportunities based on gender stereotypes.
Violence against women, including domestic and sexual violence
12.The Committee is concerned at reports that domestic violence remains prevalent and specific legislation criminalizing domestic violence is lacking. It regrets the State party’s failure to provide the requested information on cases of violence against women on the grounds that this is not a widespread phenomenon (arts. 2, 3, 7 and 26).
13. The State party should increase its efforts to prevent and combat all forms of violence against women, including by:
(a) Adopting without undue delay legislation specifically criminalizing violence against women, particularly domestic and sexual violence, and ensuring effective implementation;
(b) Strengthening preventive measures, including by collecting data about domestic violence, studying its causes, raising awareness of women ’ s rights and of the adverse impact and unacceptability of violence against women, and promoting the reporting of such cases;
(c) Providing appropriate training to the police, the judiciary and other relevant stakeholders on how to deal with cases of violence against women;
(d) Ensuring that cases of violence against women are thoroughly investigated, that perpetrators are prosecuted and, if convicted, punished with appropriate sanctions, and that victims have access to effective remedies and means of protection, including temporary restraining orders, adequate shelters and other support services throughout the country.
Definition of extremism
14.The Committee is concerned about the excessively broad definition of extremism under the State party’s legislation, which leads to arbitrary and disproportionate restrictions of the rights in the Covenant in practice (arts. 2, 9, 18, 19, 21 and 25).
15. The State party should bring its counter-extremism legislation and practices into full compliance with its obligations under the Covenant by, inter alia, narrowing the broad range of activities considered extremist and ensuring their conformity with the principles of legal certainty, predictability and proportionality, and by ensuring that the definition of extremism contains an element of violence or advocacy of hatred.
Secret detention and enforced disappearances
16.The Committee remains concerned (see CCPR/C/TKM/CO/1, para. 10) about reports of secret detention and enforced disappearance of a large number of convicted and imprisoned persons, including those convicted for alleged involvement in the assassination attempt on the former President in November 2002. It regrets the State party’s failure to respond to such allegations and to disclose the fate and whereabouts of these persons, including former Foreign Minister Boris Shikhmuradov, who has been recognized by the Committee as a victim of enforced disappearance (see CCPR/C/112/D/2069/2011) (arts. 2, 6, 7, 9, 14 and 16).
17. The State party should, as a matter of urgency:
(a) End the practice of secret detention and enforced disappearances;
(b) Disclose the fate or the whereabouts of forcibly disappeared persons and allow all detained persons visits from their families and confidential access to their lawyers;
(c) Ensure that all reported cases of enforced disappearance are promptly, thoroughly and impartially investigated, that perpetrators are brought to justice and punished with appropriate sanctions, and that victims of enforced disappearance and their relatives are informed about the outcome of the investigation and are provided with full reparation.
Torture and ill-treatment
18.While welcoming the incorporation of a separate criminal offence of torture into the Criminal Code (art. 182.1) in 2012, the Committee is concerned about the lack of clarity as to whether the note to the article, which reads “no criminal liability shall be incurred for the infliction of severe pain or physical or mental suffering as a result of lawful acts (justifiable defence of oneself or others, etc.)”, could be used as a defence to circumvent the absolute prohibition of torture (arts. 2 and 7).
19. The State party should ensure without delay, both in law and in practice, that torture cannot be justified under any circumstances whatsoever.
20.The Committee remains concerned (see CCPR/C/TKM/CO/1, para. 9) about consistent reports of torture and ill-treatment of persons deprived of their liberty, including severe beatings and electric shocks, particularly to extract confessions, and that impunity prevails for such acts. It is further concerned about allegations of: (a) torture and ill-treatment of inmates, includingof those detained at Seydi labour camp and at the OvadanDepe prison, which holds political opponents; (b) placement of inmates in “kartsers” in extreme temperatures with mosquito infestations and miniscule amounts of food and water, as well as detention for prolonged periods in “hunchback cells” with no room to stand; (c) deaths in custody caused by torture and ill-treatment, including of LukmanYaylanov and NarkulyBaltayev, one of whom reportedly weighed only 25 kg at the time of death due to starvation and torture; (d) hazing of conscripts in the armed forces that reportedly led to two deaths in 2014. The Committee is also concerned about the State party’s assertion that there have been no reported cases of torture (arts. 2, 6, 7, 10 and 14).
21. The State party should take urgent and robust measures to eliminate torture and ill-treatment effectively and to end the impunity for such acts, inter alia, by:
(a) Ensuring that the prohibitions of forced confessions and the inadmissibility of evidence procured by torture are effectively enforced in practice by law enforcement officers and by judges;
(b) Providing adequate training on torture prevention and humane treatment to law enforcement personnel;
(c) Implementing an accessible and effective complaint mechanism against torture;
(d) Ensuring that all allegations of torture and other ill-treatment, hazing and deaths in custody are reported and promptly and thoroughly investigated by an independent and impartial body, that perpetrators are prosecuted and, if convicted, are punished with sanctions consistent with the severity of the crime, and that victims and, where appropriate, their families have both in law and in practice access to full reparation, including rehabilitation and adequate compensation.
Treatment of prisoners
22.While noting the efforts made by the State party to renovate and build new prison facilities, the Committee is concerned about continued reports of inhuman prison conditions, including: (a) serious overcrowding, unsanitary conditions and inadequate access to drinking water, malnutrition, and exposure to extreme temperatures in the Ovadan-Depe and Turkmenbashi prisons; (b) isolation of inmates from the outside world, with the out-of-cell time at Ovadan-Depe prison allegedly being only once a week for seven minutes; and (c) failure to separate prisoners suffering from tuberculosis from other inmates and to provide them with adequate health care. The Committee also reiterates its concern (see CCPR/C/TKM/CO/1, para. 9) about the lack of independent oversight bodies to inspect places of deprivation of liberty and investigate abuse by law enforcement officials (arts. 2, 6, 7 and 10).
23. The State party should:
(a) As a matter of priority, take measures to establish a system of regular and independent monitoring of places of detention without prior notice and create the conditions necessary to facilitate effective monitoring by independent organizations and reinforce its efforts to grant meaningful access to places of detention to the International Committee of the Red Cross;
(b) Take effective measures to eliminate overcrowding in places of detention, including by resorting to non-custodial alternative measures to detention;
(c) Ensure that persons deprived of liberty are treated with humanity and respect for the inherent dignity of the human person and, to this end, redouble efforts to improve conditions of detention in accordance with the Covenant and the United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules);
(d)Ensure the availability of an effective complaint mechanism, investigate violations of inmates ’ rights promptly and thoroughly, bring perpetrators to justice with appropriate penalties, and provide effective remedies and full reparation to victims, including adequate compensation.
Judicial control of detention
24.The Committee is concerned that, under the criminal procedure legislation, the remand in custody of persons arrested or detained on a criminal charge is authorized by a prosecutor within 72 hours of arrest, with possibility of extension, and not by an officer exercising judicial power under article 9 (3) of the Covenant (art. 9).
25. The State party should amend its legislation and revise the practices under it to ensure that anyone arrested or detained on a criminal charge is brought before a judge or other officer authorized by law to exercise judicial power within 48 hours in order to bring the detention under judicial control. In this regard, the Committee draws the attention of the State party to its general comment No. 35 (2014) on liberty and security of person, in particular paragraphs 32 and 33, indicating inter alia that a public prosecutor cannot be considered as an officer exercising judicial power under article 9 (3) of the Covenant.
Forced labour
26.The Committee is concerned about the reported widespread use of forced labour of farmers, students, public and private sector workers during the cotton harvest under threat of penalties such as loss of land, expulsion from university, loss of wages or salary cuts, termination of employment and other sanctions (art. 8).
27. The State party should promptly put an end to forced labour in the cotton sector, inter alia, by fully enforcing the legal framework prohibiting forced labour. It should clearly communicate to public officials and the public at large that the mobilization of persons to pick cotton under coercion or threats is unlawful, prosecute those responsible for such violations, and provide full reparation to victims.
Freedom of movement
28.The Committee reiterates its concern about the mandatory residence registration system (propiska), which is a prerequisite for residence, employment, acquisition of real estate and access to health services (see CCPR/C/TKM/CO/1, para. 12). It is also concerned about arbitrary restrictions on freedom of movement, including: (a) overly broad grounds for restricting travel abroad under the Migration Act, including when a person is a defendant in a civil suit; (b) the alleged use of informal and arbitrary travel bans on individuals, including journalists, activists, religious leaders and former government officials holding opposition views, and on family members of these individuals; (c) the reported application of a non-official curfew requiring the population to return home before 10 p.m. and arrest of non-compliant individuals for 24 hours for explanation and identification purposes (arts. 9, 12, 17 and 19).
29. The State party should:
(a) Bring its compulsory residence registration system into full compliance with the Covenant;
(b) End the informal and arbitrary system of travel bans, review its laws and practices to ensure that any restrictions on travel is justified under article 12 (3) of the Covenant, and lift all restrictions that are not in compliance with this article;
(c) Refrain from imposing travel bans arbitrarily on persons in the categories mentioned above and guarantee respect for their freedom to leave the country;
(d) Ensure that any curfews imposed are applied, if at all, only as a short-term and area-specific exceptional measure, and are lawful and strictly justified under the Covenant, including under articles 9, 12 and 17, and that penalties for infringement are not disproportionate.
Independence of judiciary and fair trial
30.The Committee remains concerned (see CCPR/C/TKM/CO/1, para. 13) about alleged corruption in the judiciary and about the independence of judges, which remains severely undermined by the President’s exclusive authority to appoint and dismiss judges and the lack of security of tenure of judges, who are appointed for renewable five-year terms. The Committee is further concerned about the lack of clear information on the availability of an independent body charged with the promotion and discipline of judges. It is also concerned about reported violations in practice of the presumption of innocence and the unavailability of interpretation for Russian-speaking defendants in court proceedings (art. 14).
31. The Committee reiterates its previous recommendation that the State party take all measures necessary to safeguard, in both law and practice, the independence of the judiciary from the executive branch, including by guaranteeing judges ’ security of tenure. It should also ensure that the judicial selection process and judicial disciplinary procedures are vested in fully independent bodies, in accordance with international standards. Furthermore, the State party should: (a) combat corruption in the judiciary effectively and prosecute and punish perpetrators, including judges who may be complicit therein; (b) ensure strict respect in practice for the presumption of innocence and provide for free interpretation for all defendants, including Russian speakers, who do not understand or speak the language used in court, as required by articles 14 (2) and 14 (3) (f) of the Covenant.
Human immunodeficiency virus
32.The Committee remains concerned that the 2016 Act on Controlling the Spread of Disease caused by the Human Immunodeficiency Virus (HIV) retains the requirement of a medical certificate showing that the holder is HIV-free for visa applications and provides for compulsory HIV testing of individuals. It is also concerned that such a certificate is required for entering into marriage (arts. 2, 12, 17, 23 and 26).
33. The State party should bring its legislation and practices (see also CCPR/C/TKM/CO/1, para. 15) into full compliance with its obligations under the Covenant, in particular articles 12, 17 and 26, inter alia by lifting HIV-related travel restrictions and by ensuring that its HIV prevention policies do not lead, directly or indirectly, to discrimination on grounds of health or violate the freedom of movement and privacy of individuals.
Forced evictions
34.The Committee is concerned about reports of mass house demolitions and forced evictions in connection with construction and development projects in and around Ashgabat and the forthcoming Asian Indoor and Martial Arts Games 2017, including in the Berezengi holiday village, the Shoganly neighbourhood and the Bagtiyarlyk area. In many cases, such evictions were reportedly undertaken without adequate advance notice, without the ability to legally challenge them and without providing adequate alternative accommodation or compensation; and residents opposing forced eviction have allegedly faced harassment and intimidation (arts. 2, 14 and 17).
35. The State party should ensure adequate safeguards against forced evictions and demolitions, including procedural protection and due process guarantees, and provide those affected with effective remedies and reparation.
Surveillance and interception of private communications
36.The Committee is concerned about the lack of a clear legal framework regulating surveillance activities, including by the intelligence services (art. 17).
37. The State party should ensure that: (a) all types of surveillance activities and interference with privacy, including online surveillance for the purposes of State security, are governed by appropriate legislation that is in full conformity with the Covenant, in particular article 17, including with the principles of legality, proportionality and necessity, and that State practice conforms thereto; (b) surveillance is subject to judicial authorization as well as effective and independent oversight mechanisms; and (c) affected persons have proper access to effective remedies in cases of abuse.
Freedom of conscience and religious belief
38.The Committee remains concerned (see CCPR/C/TKM/CO/1, para. 17) that the State party’s legal framework, including the 2016 Act on Freedom of Conscience and Religious Associations, retains undue restrictions on freedom of religious belief, such as the mandatory registration of religious organizations and obstacles to registration, and restrictions on religious education and importation and distribution of religious literature. It is also concerned about the reported denial of registration of religious minority communities, raids and confiscation of religious literature and intimidation, arrests and imprisonment of members of religious communities, particularly Protestants and Jehovah’s Witnesses. The Committee is also concerned about reports of demolition of mosques and churches in Ashgabat, including in April 2016, when authorities bulldozed one of the mosques claiming it had been built without permission over 20 years ago (arts. 9, 18 and 26).
39. The State party should guarantee the effective exercise of freedom of religion and belief in practice and refrain from any action that may restrict it beyond the narrowly construed restrictions permitted under article 18 of the Covenant. It should bring legislation and practice into conformity with article 18 of the Covenant and investigate all acts of undue interference with the freedom of religion of religious communities, including Jehovah ’ s Witnesses, Protestants and Muslims.
40.With reference to the previous concluding observations (see CCPR/C/TKM/CO/1, para. 16) and numerous Views adopted under the Optional Protocol in respect of the State party, the Committee remains concerned about the continued failure to recognize the right to conscientious objection to compulsory military service and the repeated prosecution and imprisonment of Jehovah’s Witnesses refusing to perform compulsory military service (art. 18).
41. The State party should revise its legislation without undue delay with a view to clearly recognizing the right to conscientious objection to military service, provide for alternative service of a civilian nature outside the military sphere and not under military command for conscientious objectors, and halt all prosecutions of individuals who refuse to perform military service on grounds of conscience and release those who are currently serving prison sentences.
Freedom of expression
42.The Committee remains concerned (see CCPR/C/TKM/CO/1, para. 18) about laws and practices severely restricting freedom of opinion and expression, including:
(a)Absence of a genuine independent media despite the adoption of the 2012 Media Act;
(b)Undue restrictions on access to the Internet and disproportionate limitations on online content for vaguely and broadly defined activities provided for in the 2014 Internet Development and Internet Service Legal Regulations Act;
(c)Forcible dismantling of private satellite dishes from buildings and houses in the capital, reportedly preventing thereby access to information from foreign sources;
(d)Continuous use of harassment, intimidation, torture and arbitrary arrests, detention and convictions on reportedly politically motivated charges as a retaliation tool against journalists, human rights activists, dissidents, members of religious groups and ethnic minorities, and members of non-governmental organizations interacting with foreigners, such as the political dissident GulgeldyAnnaniazov and freelance journalist SaparmamedNepeskuliev, and those seeking to document forced labour in the cotton harvest, such as Gaspar Matalaev (arts. 7, 9, 10, 14 and 19).
43. The State party should revise its laws and practice with a view to guaranteeing the full enjoyment of freedom of expression by everyone in practice, including by ensuring:
(a) The development of a truly independent media, including an enabling environment for their establishment and operation free from undue influence or interference;
(b) The effective protection of the above-mentioned categories of persons against repression and ill-treatment and refraining from using administrative and criminal provisions and other regulations as tools to curtail freedom of expression and other protected conduct;
(c) That any restrictions on the exercise of freedom of expression comply with the strict requirements of article 19 (3) of the Covenant as interpreted in the Committee ’ s general comment No. 34 (2011) on the freedoms of opinion and expression;
(d) That the acts referred to in paragraph 42 (d) above are thoroughly and independently investigated, prosecuted and sanctioned, and that victims are provided with effective remedies.
Peaceful assembly
44.The Committee is concerned of reports that assemblies are rare owing to a fear of reprisals for expressing any dissenting views and that insufficient venues are designated for holding authorized assemblies. It is also concerned about reports of forcible mass mobilization of the population for participation in various mass events organized by the authorities (arts. 19 and 21).
45. The State party should revise its laws, regulations and practices, including the 2015 Organization and Conduct of Gatherings, Meetings, Demonstrations and Other Mass Events Act, with a view to guaranteeing the full enjoyment of the right to freedom of assembly both in law and in practice and to ensuring that any restrictions on the freedom of assembly comply with the strict requirements of article 21 of the Covenant. It should also ensure that participation in mass events is voluntary and refrain from any reprisals for non-participation.
Freedom of association and participation in public life
46.The Committee is concerned about the restrictions on freedom of association, including under the 2014 Voluntary Association Act, such as the compulsory registration of associations, provisions allowing wide monitoring powers of the authorities over the activities and finances of associations and the broad legal grounds for closing them down by court order. It is also concerned about the very limited number of registered non-governmental organizations working on human rights issues (art. 22).
47. The State party should revise relevant laws, regulations and practices with a view to bringing them into full compliance with the provisions of articles 19 and 22 of the Covenant.
48.While welcoming the legislative framework providing for a multiparty system, the Committee is concerned about excessive restrictions on the establishment and functioning of political parties, as well as provisions permitting representatives of the Central Election Committee and of the Ministry of Justice to monitor meetings of political parties (arts. 19, 22 and 25).
49. The State party should take all measures necessary to guarantee the proper functioning of political parties free from unnecessary interference and ensure that any limitations on the establishment of a political party are construed narrowly and that the principles of legality, necessity and proportionality are strictly adhered to. It should, to this end, bring its regulations and practice governing the establishment, registration and functioning of political parties into full compliance with articles 19, 22 and 25 of the Covenant and relevant international standards.
Prisoners’ right to vote
50.The Committee is concerned about the general denial of the right to vote to all convicted prisoners, and recalls that a blanket denial does not meet the requirements of article 10 (3), read in conjunction with article 25 of the Covenant (arts. 10, 25 and 26).
51. The State party should revise legislation denying all convicted prisoners the right to vote in the light of the Committee ’ s general comment No. 25 (1996) on participation in public affairs and the right to vote (para. 14).
D.Dissemination and follow-up
52.The State party should widely disseminate the Covenant, its two Optional Protocols, its second periodic report, the written replies to the Committee’s list of issues and the present concluding observations with a view to raising awareness of the rights enshrined in the Covenant among the judicial, legislative and administrative authorities, civil society and non-governmental organizations operating in the country, and the general public. The State party should ensure that the report and the present concluding observations are translated into the official language of the State party.
53.In accordance with rule 71, paragraph 5, of the Committee’s rules of procedure, the State party is requested to provide, within one year of the adoption of the present concluding observations, information on the implementation of the recommendations made by the Committee in paragraphs 17 (secret detention and enforced disappearances), 21 (torture and ill-treatment) and 23 (treatment of prisoners) above.
54.The Committee requests the State party to submit its next periodic report by 29 March 2020 and to include in that report specific up-to-date information on the implementation of the recommendations made in the present concluding observations and of the Covenant as a whole. The Committee also requests the State party, in preparing the report, to broadly consult civil society and non-governmental organizations operating in the country. In accordance with General Assembly resolution 68/268, the word limit for the report is 21,200 words. Alternatively, the Committee invites the State party to agree, by 29 March 2018, to use its simplified reporting procedure, whereby the Committee transmits a list of issues to the State party prior to the submission of its report. The State party’s response to the list of issues will constitute the next periodic report to be submitted under article 40 of the Covenant.