ODIHR.GAL/15/03 12 March 2003 Original: as delivered Distr. 55 OSCE participating States 12 March 2003 Original: ENGLISH 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. SUMMARY 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. 2 RECOMMENDATIONS 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 Rapporteur1. 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 As the press release of 14 February 2003 publicising the invocation of the Moscow Mechanism does not stress a deadline, the Rapporteur continues to receive testimonies from multitude sources. 3 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.