Thursday, February 22nd, 2024

Legal Analysis of the Decision of the Supreme Court banning the IRPT

Decision of the Supreme Court on declaring the IRPT illegal and extremist and terrorist organization, banning the IRPT’s activities and liquidating the party, suspension of the publication of the newspaper “Najot”, closing the IRPT website and banning the import, distribution of audio and video recordings, newspapers, literature and leaflets of the party.

(Legal analysis of the Decision of the Supreme Court of the Republic of Tajikistan dated 29.09.2015)

On September 29, 2015, the Supreme Court of the Republic of Tajikistan presided by judge Azizov Sh.O., with participation of prosecutor Raufov F.Kh., representatives of the Ministry of Justice of the Republic of Tajikistan, the Communications Service under the Government of the Republic of Tajikistan, the Ministry of Culture of the Republic of Tajikistan, the State Committee for Religious Affairs, Regulation of Traditions and National Celebrations under the Government of the Republic of Tajikistan and the Tax Committee under the Government of the Republic of Tajikistan considered a civil case at the request of the Prosecutor General of the Republic of Tajikistan to designate the Islamic Renaissance Party of Tajikistan as an extremist and terrorist organization, ban the party’s activities and its liquidation, suspend the publication of the party’s newspaper “Najot”, close the of the IRPT website and ban the import, distribution of audio and video recordings, newspapers, literature and leaflets of the party, and on the same day ruled to ban the Islamic Renaissance Party of Tajikistan and declared it extremist and terrorist organisation.

The analysis of this case, both from the point of view of legislation of Tajikistan and from the point of view of international laws, shows that the decision was made in violation of various requirements of the civil procedure legislation of Tajikistan and recognized international norms.

Buzurgmehr Foundation made the analysis based on the Court Decision published on the official website of the Supreme Court of Tajikistan, testimony of witnesses and members of the Islamic Renaissance Party of Tajikistan, as well as the analysis of civil procedure legislation of Tajikistan.

Buzurgmehr Foundation will divide its analysis into two parts:

1) Analysis of the accuracy of civil proceedings.

2) Analysis of evidence presented to the court.

1) ANALYSIS OF THE ACCURACY OF THE CIVIL PROCEEDING

Compliance with the requirements of the petition form

The Prosecutor General’s Office together with other state bodies, such as the Ministry of Justice, State Communications Service, Ministry of Culture, State Committee on Religious Affairs, Regulation of Traditions and National Celebrations of Tajikistan and the Tax Committee have filed a petition to the court. However, it is not clear from the form of this petition whether this petition is a legal claim, or it was filed according to the procedure for filing petitions related to cases arising from public legal relationship or according to the procedure for reviewing and resolving cases of special proceedings.

There is no specific way of filing a petition to designate an organization as an extremist and terrorist organization in the legislation of Tajikistan, neither in the Law “On the fight against extremism”, nor the Law “On the fight against terrorism”, nor the Law “On political parties”, nor the Code of Civil Procedure of Tajikistan.

If this petition of the Prosecutor General’s Office was filed to the court as a legal claim, then a copy of it should have been sent to the opposite party, i.e. the representatives of the IRPT, and the petition should also have mentioned them as defendants.

If the petition was filed in the form of cases arising from public legal relationship, then in this case, in accordance with the requirements of Article 250 part 3 of the Code of Civil Procedure, the Prosecutor General’s Office or the Court were obliged to present the petition to the representatives of the IRPT before the trial.

According to this requirement of the law, when considering and resolving cases arising from public legal relationship, only the norms of the litigation process regarding the recognition of the claim, counter-claim, measures to secure the claim, and reconciliation agreement of the parties are not applied. That is, other procedure norms must be ensured. (Article 250 part 1 of Code of Civil Procedure).

According to the requirements of Article 268 of the Code of Civil Procedure, the Court must consider the cases of special proceedings according to the general procedure rules of the claim. That is, in any case, the petition of the Prosecutor General’s Office, which was filed to the Court, should have indicated the IRPT as a participant in the court proceedings. In accordance with the requirements of Articles 134 and 135 of the Code of Civil Procedure, which regulates the form and content of the petition, the Court should have rejected the petition of the Prosecutor General’s Office due to its form (procedure) mistakes.

Conclusion of the Court Decision stated: “A cassation appeal or objection can be brought to the Judicial Collegium on Civil Cases of the Supreme Court of the Republic of Tajikistan within one month from the date of delivery of the justified decision to the parties“. The use of the words “the parties” means that two opposing parties participated in the proceedings. However, as we can see from the study of the Decision, no representative of the IRPT participated in the court proceedings.

TERMS OF PROCEDURE

Based on testimony of the witnesses and information from the authorities of Tajikistan, the Prosecutor General filed the petition to the Supreme Court on September 25, 2015. The court proceedings and the Decision happened in the same day – September 29, 2015. September 25, 2015 was Friday. The other days, that is, September 26 and 27, were days off and the courts did not work.

Thus, only two days, 28 and 29, were left for consideration and issuing the Decision based on the petition of the Prosecutor General to the Supreme Court. On September 29, the trial began, that is, the Supreme Court had only one day to prepare the case, send notices and subpoenas, study the petition of the Prosecutor General and examine the accuracy of the evidences presented to start the court proceedings, send a copy of the petition to the representative of the defendant, ask the defendant about the filed petition, and other actions according to the legislation, Article 153 of the Code of Civil Procedure.

It is impossible and doubtful to carry out such procedure actions as preparation of the case, preliminary court hearing, assignment of the case to the court proceedings in one day. Usually citizens of Tajikistan wait for a long time (three, four months or even years) for their petitions to be considered.

Apart from this, the IRPT representatives were not given a copy of the Court Decision within the terms specified by law.

In accordance with the requirements of the civil procedure legislation (Article 109, Part 1 of the Code of Civil Procedure), procedure actions are carried out within the procedure terms specified by law, and in case of non-compliance with these requirements, the Decisions are regarded as illegal.

JUDICIAL NOTICES

While the petition of the Prosecutor General’s Office was considered, the representatives of the IRPT should have participated. They should have participated there in any case, regardless if the petition was filed in the form of a legal claim, or special proceedings or as public rights case. In any case, the IRPT as an organization and based on the requirements of Article 28 of the Constitution and Article 4 of the Code of Civil Procedure should have been informed about the court proceedings and should have had the opportunity to participate in it.

The court should have sent a notice to the representatives of the IRPT in any case. While the representatives of the IRPT Supreme Board were in prison, the court could give them the opportunity to protect the rights of the IRPT, or a notice could be sent to other representatives of the IRPT who were out of prison.

Thus, the Supreme Court of Tajikistan acted contrary to the requirements of articles 115-118 of the Code of Civil Procedure and did not send any notice to the opposite party, i.e. representatives of the IRPT, the political party, which was a legal party in Tajikistan at the time of the case consideration. This led to the fact that the representatives of the IRPT not only could not participate in the consideration of the case, but also lost the opportunity to file an appeal against the Decision. The IRPT was not aware of the case at all.

PREPARATION OF THE CASE

Preparation of the case for a court proceeding is mandatory for every civil case (Article 150 part 1 of the Code of Civil Procedure). During the court consideration of the IRPT case, the preparation of the case was not carried out. The IRPT should have participated in this trial as a “party” and this was also mentioned by judge Azizov Sh.O. in the Conclusion part of the Decision he issued, as he stated “A cassation appeal or objection can be brought to the judicial collegium on civil cases of the Supreme Court of the Republic of Tajikistan within one month from the date of delivery of the justified decision to the parties“.

In accordance with the requirements of Article 40 part 1 of the Code of Civil Procedure, the parties in civil proceedings are the plaintiff and the defendant. We know that the claim was filed by the Prosecutor General and this was also mentioned in the Decision, but the other party, the IRPT, was not asked questions at all and was not given to say a word. During the preparation of the case, the judge should have performed the actions that require the mandatory participation of the parties: to resolve issues regarding the composition of the parties participating in the case and other participants of the trial; submission of necessary evidence by the parties and other people participating in the case; submission by a party a request to the judge to request evidence that cannot be obtained independently, without the help of the court; submission of objections to the plaintiff and the judge in writing regarding the requirements of the claim, etc.

The court should also take certain actions during the preparation stage of the civil case, such as: to inform citizens or organizations having interests in the outcome of the case about the date and place of consideration of the case; to resolve issues of calling witnesses; conduct expert examination and to appoint a forensic expert to conduct it, as well as to resolve the issues of involving specialists and translators in the proceedings; at the request of the parties, other persons involved in the case and their representatives, to require and obtain the evidences from the organizations and citizens, that the parties or their representatives could not obtain on their own. However, the analysis of the Court Decision, the absence of any witnesses and the expert’s opinion show that the Supreme Court did not conduct this important stage of the civil proceedings at all. This also proved by time spent for the receiving, registering, sending the petition to Judge Azizov for consideration, studying the petition by the judge, writing and sending notices, preparing the case, setting the date for the start of the court proceedings, which was completed only in one and a half days, i.e. part of September 25 and September 28, 2015. Completing such an amount of procedure actions in a short period of time proves that someone had interfered in the activity of the Supreme Court.

RIGHT TO DEFENSE

Based on the requirements of Article 19 of the Constitution of Tajikistan, every person is guaranteed judicial protection. Guaranteed judicial protection means the protection of not only the individual interests of a person, but also the protection of public interests. According to the requirements of Article 28 of the Constitution, individual citizens have the right to associate. Thus, based on the Constitution, individuals and organizations have the right to defend themselves and their interests in court.

Article 4 of the Code of Civil Procedure states that each interested person has the right according to the procedure, established by the civil judicial and procedure legislation, to judicial protection of the violated or disputed rights, freedoms and legitimate interests. In this case, the members of the IRPT were deprived of the right to defend their interests in court. No representative of IRPT participated in the court proceedings, was not aware of it, and the lawyer was not appointed by the Court to the defendant.

The parties were not given equal rights during this trial. The plaintiff, the Prosecutor General, had the opportunity to present his claim and supporting evidence to the court. The opposite party, the IRPT, did not have this opportunity, which is contrary to the requirements of Article 13 of the Code of Civil Procedure: Justice in civil cases is implemented on the basis of competitiveness and equality of the parties. The representatives of the public organization – IRPT did not have any information about the Prosecutor General’s petition filed, they were not aware of the date of the consideration of the case, they did not have the opportunity to participate and present their evidence, witnesses, appointment of expert examinations and other actions specified by law.

After the Decision was issued, the representatives of the IRPT were not given a copy of it, and it was not even mailed to them. A copy of this Decision was posted on the official website of the Supreme Court two months later, which had already excluded the possibility of filing an appeal. No member of the IRPT has formally received a copy of this Decision to date.

CONCLUSION:

Thus, there were a number of violations of the law before, during and after the trial, such as violation of the court proceedings terms; failure to send notices and subpoenas; violation of procedure rules of the civil court on preparation of the case; deprivation of the right to defense; failure to inform about the filed petition to the Court; limiting the right to defense; preventing to attend court proceedings; violation of the equality of the parties; deprivation of the right to familiarize with the petition and to present evidence, requests and witnesses; unavailability of the Decision dated 29.09.2015; there was a violation of the principle of presumption of innocence and the regarding individuals as criminals without the criminal court decision.

  • ANALYSIS OF THE EVIDENCE PRESENTED TO THE COURT

The plaintiff, the Prosecutor General, the Ministry of Justice, the Communications Service, the Ministry of Culture, State Committee for Religious Affairs, Regulation of Traditions and National Celebrations under the Government of Tajikistan and the Tax Committee submitted various evidences to the court to strengthen their claim to ban the IRPT and designate it as an extremist and terrorist organisation.

In accordance with the requirements of the civil legislation of Tajikistan (Article 200 of the Code of Civil Procedure), the court justifies the decision with those facts that have been examined in the court proceedings. However, we can see in this Decision that the Justification part is a complete copy of the text of the Prosecutor General’s petition. In other words, Judge Ashurov made a word-to-word copy of written petition as a justification for his Decision. During the court proceedings, no witnesses or experts were called, no examination was conducted, and the opposing party was not given the opportunity to defend themselves. If any additional evidence was discussed, it was not mentioned in the Court Decision.

A) only in the last 5 years, 45 members of the IRPT committed various serious and particularly serious crimes, and 34 of them received final court decisions regarding their illegal actions. 17 IRPT members have been brought to criminal accountability on extremism and terrorism charges, such as organizing criminal groups, participating in extremist organizations, public calls to forcible changing the constitutional system of the Republic of Tajikistan and inciting religious hatred.

The Prosecutor General presented this evidence to the court, but did not prove the relation of the IRPT with the actions of its members or former members. Also, it has not been proven that these crimes were committed with the support and leadership of the IRPT. If this actually happened, then why was no action taken by the Prosecutor General’s Office against the leaders of IRPT? On what grounds did the Prosecutor General’s Office associate the commission of the mentioned crimes with the activities of the IRPT? To prove this fact, what kind of evidence did the Prosecutor General’s Office present to the Supreme Court, other than mere statements? Such evidences were not presented to the Court either.

B) during the investigation of the criminal case on the murder of 25 military personnel of the Ministry of Defense of the Republic of Tajikistan in the Rasht Valley in 2010 by members of the terrorist organization “Chamiyati Ansorullah” under the leadership of Davlatov Alovuddin, nicknamed “Ali Bedaki” and Rakhimov Abdullo nicknamed “Mullo Abdullo” was established that the Chairman of the IRPT in the Rasht district Davlatov Husniddin joined this terrorist association of  Davlatov’s brother Alovuddin, was detained while extracting chemical substances  for the manufacture of explosives for this group.

This evidence shows that if Davlatov Husniddin joined the criminal organization of his brother Davlatov Alovuddin, then he was no longer a member of the IRPT and it was groundless to connect his actions, i.e. helping his brother, to the IRPT. How did the investigation prove that Davlatov Husniddin was following the orders and instructions of the leadership of the IRPT? Why was there no testimony of Davlatov Husniddin about this situation? Why was no action taken against the leadership of IRPT since 2010? Neither the Prosecutor General’s Office nor Judge Ashurov in his Decision has mentioned this.

C) Karamkhudoev Sh.E., the Chairman of the IRPT branch in Khorog city,  joined the organized crime group in July 2012, took part in the public unrest that occurred in the city of Khorog and its surrounding areas, and with the use of firearms – Kalashnikov assault rifle and grenades showed an armed confrontation with the authorities.

Also, there was no proof to this argument presented by the Prosecutor General’s Office. Karamkhudoev Sh.E. did not testify at the trial, he was not questioned. Apart from this written statement, the Prosecutor General’s Office did not submit any other proof of this fact to the Supreme Court. The relevance of the actions of Karamkhudoev Sh.E. in Khorog in 2012 and IRPT were not found. Why didn’t the investigative authorities take any action against the IRPT or its leadership in three years after Karamkhudoev committed these actions?

D) Mahmadrizoev Sabzali, Head of the regional IRPT department in GBAO, on July 24, 2012, died in an armed attack against the representatives of the law enforcement agencies, and a Kalashnikov assault rifle and Makarov pistol were found and seized from him.

Regarding the death of Mahmadrizoev Sabzali, it was unclear how the investigation had been able to prove that he had resisted and attacked the representatives of the law enforcement agencies by order of the IRPT or its leadership. During the course of the investigation of the criminal cases of these people, was there any other evidence that confirmed, that they had been following the orders and instructions of the IRPT or not? If yes, why were they not examined in the civil court proceedings on 29.09.2015?

E) On January 2008, Sharipov Mukarramkhuja, Sharipov Mussayamhuja and Tursunov Abdumubin, the active members of the IRPT in Isfara city, hidden  Kayumov Abdufatto and Boboev Abdukholik, members of the terrorist organization “The Turkestan Islamic Party”, for several days in their home and provided them with accommodation and food, and themselves joined this criminal organization.

During the civil court proceedings, these people did not testify, like others, and their testimonies were not analysed during the proceedings. It was not found out, if they were relatives of Kayumov Abdufatto and Boboev Abduholik or not. No additional and sufficient evidence was presented to the court to prove that these people had committed their actions with the support of the leadership of the IRPT.

F) On August 11, 2015, 10 residents of the city of Norak hung the flag of the extremist and terrorist organization “ISIS” on the bridge of the village of Chashma-1 in Norak. The investigation showed that 5 people from this group, that is, Saidov D., Fozilov D., Prior K., Khojamurodov T. and Abdulloev J.  were the IRPT members, carried out these actions to stirring the political and religious enmity and hatred, destabilization of public peace and instilling fear among the population. Manonov Kurbon, the head of the IRPT in Norak was also directly involved in these illegal actions, preliminary investigation to criminal cases in relation to the abovementioned persons is ongoing.

The presentation of this evidence and its acceptance by the Court to designate the IRPT as an extremist and terrorist organization is unacceptable, because the investigation into this incident was ongoing during the civil court proceedings on 29.09.2015, and the court had not yet proven that the abovementioned persons were guilty of committing these actions.

G) Also, the criminal case on the circumstance of hanging the ISIS flag in the Shahritus district is under the investigation.

This is also unacceptable as an evidence, because the case was under the investigation at that time, and according to the law, no one was found guilty of committing this crime. It was illegal to use this unconfirmed information as evidence.

H) Said Ibrohim Nazar, a member of the Supreme Board Council and the head of the Science, Culture and Propaganda Department of the IRPT, committed crimes against sexual freedom and sexual inviolability.

Committing crimes of a sexual nature is an individual act of each person, and it was completely improper and illegal to link it to the policy of the public organization IRPT.

І) Mukhidin Kabiri, the Chairman of the IRPT, on a preliminary conspiracy with other members of the IRPT Supreme Board, through the main IRPT newspaper Najot and other media, regularly published information and articles from 2010 to the date, that stirring the  national and religious conflicts and propagated and agitated among the population  the spirit of hatred and oppose against economic, social, cultural and religious policies of the state and the constitutional Government of the Republic of Tajikistan.

The Prosecutor General’s Office did not present any material to the Court to prove this fact, and no material was examined during the court proceedings. Even the conclusions of relevant expert examinations were not presented in the Decision. It is not clear, which news and articles inciting national and religious hatred were meant. If these articles were published in the newspaper “Najot”, then why didn’t the Prosecutor General’s Office present them to the court together with expert opinion?

It is not crime to incite hatred and opposition to the economic, social and cultural policy of the government in the Republic of Tajikistan. Why did the Prosecutor General’s Office present this as the basis for designation IRPT as extremist and terrorist organisation and the Supreme Court accept it?

J) The Prosecutor General’s Office regarded the incidents of September 4-12, 2015, the investigation of which had just begun, as part of the activities of the IRPT, considered them as one of the reasons to ban the party.

It is illegal and groundless that the Supreme Court and Judge Ashurov accepted the incidents of September 2015 as evidence and regarded the involvement of the IRPT in them as proven fact, while the criminal case related to these incidents was still under preliminary investigation. In this case, the principle of presumption of innocence was violated against the members of the IRPT Supreme Board, who were under investigation. Already, before the start of the court proceedings against them in February 2016, they were designated as members of an extremist and terrorist organization by the Decision of the civil court, and logically they were already designated as terrorists and extremists. Whereas, in accordance with the civil procedure legislation of Tajikistan (Article 3 of the Code of Civil Procedure), civil courts consider only civil disputes and do not have the authority to give a legal assessment of any criminal act.

K) The IRPT acted contrary to the current policy of the state and government.

This argument is not acceptable or subject to analysis at all. No political party or organization is obliged to support the policies of the state and government, and in case of non-compliance, this cannot be a basis for designating them as extremist and terrorist organization.

L) The IRPT leadership never published a statement of inadmissibility of committing extremism and terrorism that is topical question of a world community, and has not taken any measures on agitation and propaganda of the given matter. These inactions witnessed about the silent assent of the IRPT leadership on the indecent actions of party members and solidarity with extremist organizations.

We don’t know what to write against this stupid argument. For the first time we have seen this level of stupidity and illiteracy of the Prosecutor General’s Office staff. Believe me!

M) The IRPT’s activity as an extremist-terrorist organization is manifested in the fact that on its popular leaflets, on the official website at www.nahzat.tj, and also on Facebook, on four pages -“Ҳизби наҳзати исломии Тоҷикистон” (Tajik. Islamic Renaissance Party of Tajikistan), “Партия исламского возрождения Таджикистана”  (Russian. Islamic Renaissance Party of Tajikistan), “Ҳизби наҳзати исломии Тоҷикистон” (Tajik. Islamic Renaissance Party of Tajikistan) and “Партия Исламского Возрождения Таджикистана” (The Islamic Renaissance Party of Tajikistan), in the social network www.ok.ru – five pages by names “Ҳизби наҳзати исломии Тоҷикистон” (Islamic Renaissance Party of Tajikistan), “Ҳизби наҳзати исломии Тоҷикистон” (Islamic Renaissance Party of Tajikistan), “Ҳизби наҳзати исломии Тоҷикистон” (Islamic Renaissance Party of Tajikistan), Islamic Renaissance Party of Tajikistan and “Ҳизби наҳзати исломии TJK” (Islamic Renaissance Party of TJK), “ҲИЗБИ НАҲЗАТИ ИСЛОМИ ДАР Н.ҚУМСАНГИР” (Islamic Renaissance Party of Tajikistan in Kumsangir) and in the social network www.twitter.com at twitter.com/nahzattj disseminate  the  provocative news, that slandered both the leadership of the Republic of Tajikistan and law enforcement agencies, called for the  overthrow the constitutional system of the Republic of Tajikistan.

Apart from this writing, the Prosecutor General’s Office did not present any publication or internet materials of the IRPT to the Court to prove their argument, because there was no reference to them in this Decision. In addition, it should be noted that disseminating provocative news, that slandered both the leadership of the Republic of Tajikistan and law enforcement agencies, calling for the overthrow the constitutional system of the Republic of Tajikistan cannot be the basis for banning the party and designating it as extremist and terrorist organization. Only calls to FORCIBLE change of the constitutional system is a crime, not calls to do it in other ways.

N) According to the existing facts the main purpose of the Islamic Renaissance Party of Tajikistan is to overthrow the constitutional system of the Republic of Tajikistan and attempt to the independence, national integrity, and national security.

The goals and mission of every organization are mentioned in their Charter and other official documents. It is not clear, what the Prosecutor General’s Office meant by “existing facts”. Were this information submitted to the Court? If yes, why didn’t Judge Ashurov rely on them in the Justification part of the Decision?

The only evidence considered in the Court was the minutes of the meetings of the cells and departments of the IRPT, the decrees of the departments of the IRPT and 6 other documents, which were issued from March 6, 2015 to 25 July, 2015. According to the Prosecutor General’s Office, these documents were written voluntarily by the IRPT members, who found out about dishonourable plans and intentions of party leaders and involvement in extremist and terrorist activities and crimes, and voluntarily resigned from the party.

During the court proceedings, none of these people was asked to explain to the Court the reasons for resigning from the party. Whereas already at the beginning of 2015, Saidumar Husaini and Mahmadali Hait, deputy chairmen of the IRPT had filed a petition to the Supreme Court against the illegal actions of Tajik authorities that they had been forcing the IRPT members to resign. However, due to unknown reasons, the petition has not been considered till date. The Supreme Court was aware that a petition was filed by the IRPT, which means that there was a point of view differing from that of the Prosecutor General’s Office, but in order to properly consider this situation, no one was called to the court and questioned.

According to the legislation of Tajikistan (Article 22 of the Law “On Political Parties”), the activity of a political party can be ceased by the decision of the Supreme Court of the Republic of Tajikistan on banning it, as well as by its reorganization and/or liquidation. The grounds for banning the activity of a political party by the Supreme Court of the Republic of Tajikistan are as follows: The establishment and activity of political parties whose purpose or actions are aimed at extremist and terrorist activities, forcible overthrow of constitutional system and formation of armed groups and/or propagandise race, national, ethnic, social and religious dissensions, are prohibited. (Article 4 of the Law “On Political Parties”, Law of the Republic of Tajikistan dated 08.08.2015, No. 1209)

During the trial on 29.09.2015, the Supreme Court presided by Ashurov Sh., without sufficient proof that the IRPT or their actions aimed at extremist and terrorist activities, forcible overthrow of constitutional system and formation of armed groups and/or propagandise race, national, ethnic, social and religious dissensions, ruled for designation this public organization as extremist and terrorist organization and banned the party on the territory of Tajikistan.

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