VZCZCXRO3710
RR RUEHIK RUEHPOD RUEHYG
DE RUEHNT #0312/01 0731041
ZNR UUUUU ZZH
R 131041Z MAR 08
FM AMEMBASSY TASHKENT
TO RUEHC/SECSTATE WASHDC 9376
INFO RUEHZG/NATO EU COLLECTIVE
RUEHAH/AMEMBASSY ASHGABAT 3817
RUEHTA/AMEMBASSY ASTANA 0031
RUEHEK/AMEMBASSY BISHKEK 4433
RUEHLM/AMEMBASSY COLOMBO 0295
RUEHKA/AMEMBASSY DHAKA 0265
RUEHDBU/AMEMBASSY DUSHANBE 0311
RUEHIL/AMEMBASSY ISLAMABAD 4022
RUEHBUL/AMEMBASSY KABUL 2293
RUEHNE/AMEMBASSY NEW DELHI 0968
RUEAWJA/DEPT OF JUSTICE WASHDC
RUEHVEN/USMISSION USOSCE 2386
RHEFDIA/DIA WASHDC
RHEHNSC/NSC WASHINGTON DC
RUEAIIA/CIA WASHDC

UNCLAS SECTION 01 OF 05 TASHKENT 000312 
 
SIPDIS 
 
SIPDIS 
 
DEPT FOR INL ANDREW BUHLER AND NORIS BALABANIAN; SCA/CEN 
FOR BRIAN RORAFF AND RICK SNELSIRE; EUR/ACE FOR RICK 
STODDARD AND DEAN FISCHER 
DEPT OF JUSTICE FOR OPDAT CATHERINE NEWCOMBE AND JUDGE JOHN 
TUNHEIM 
ASTANA FOR ALMATY/USAID 
 
E.O. 12958: N/A 
TAGS: PHUM EAID PREL KCRM PGOV PINR ASEC UZ
SUBJECT: NOT QUITE HABEAS CORPUS, BUT A GOOD STEP 
 
REF: TASHKENT 303 
 
SENSITIVE BUT UNCLASSIFIED -- PLEASE PROTECT ACCORDINGLY 
 
¶1. (SBU) Summary:  On March 6 a visiting U.S. Federal Judge 
met on the margins of a USAID-funded conference on human 
rights and law enforcement in Tashkent with Deputy Minister 
of Internal Affairs (MVD) Alisher Sharafutdinov and Tashkent 
State Law Institute Professor Umida Tukhtasheva.  The 
private, spontaneous meeting was an opportunity to review 
areas of concern in significant detail and stemmed from a 
productive plenary discussion in which the judge shared his 
views as well as analysis from the U.S. Department of Justice 
Office of Prosecutorial Development and Assistance Training 
(DOJ/OPDAT).  Specific areas of concern under the 
International Covenant on Civil and Political Rights (ICCPR), 
which Uzbekistan has ratified, include:  defining when the 
clock starts ticking in tracking initial detention after 
arrest; the lack of clear probable cause standards in 
weighing pre-trial detention; the closed nature of court 
hearings to decide on detentions; the right to access counsel 
in practice; and the right to remain silent.  The Rapid 
Reaction Group, an unregistered NGO in Uzbekistan, conducted 
an early study after the first month which claimed that 
nothing has changed yet, which contradicts the Ministry of 
Internal Affairs' initial data.  Sharafutdinov humbly 
admitted that "the law has many loopholes" but asserted that 
it was a major step forward.  The conference provided a 
valuable forum in which to intensify the dialogue, and the 
Uzbeks appreciated the in-depth discussion with the U.S. 
Judge.  This may be the best opportunity to pursue meaningful 
legal reform since the American Bar Association Central and 
East European Law Initiative (ABA/CEELI) was asked to leave 
the country in 2006.  End summary. 
 
Background 
---------- 
 
¶2. (SBU) A new law went into effect in Uzbekistan on January 
1 entitled "On Amendments and Addenda to some Legislative 
Acts of the Republic of Uzbekistan in Relation with Transfer 
to Courts the Right to Issue Sanctions for Arrest."  The law 
addresses many habeas corpus issues and, while it is a major 
step forward in providing a legal basis for defendants' 
rights, it contains many shortcomings.  Uzbekistan ratified 
the ICCPR in 1995, thereby accepting obligations to fulfill 
its requirements, and a visiting U.S. Federal Judge presented 
an insightful analysis of the law during a plenary session of 
a high-profile, USAID-funded human rights and law enforcement 
conference in Tashkent on March 5-6 (reftel).  Sharafutdinov 
and Tukhtasheva met privately with the U.S. Judge on the 
margins of the conference for two hours on March 6 to discuss 
the nuances of the law in detail, focusing on areas where the 
legislation does not meet international standards. 
 
When Does the Clock Start Ticking? 
---------------------------------- 
 
¶3. (SBU) The U.S. Judge presented concerns that a phrase in 
the Uzbek law that starts the habeas clock ticking "from time 
of arrest" can be interpreted differently based on when the 
detention is officially logged.  Whereas international law is 
clear that arrest should be defined as the moment of 
detention, under the Uzbek law it starts from the time the 
applicant is brought to the police station.  The U.S. Judge 
noted that this gray area creates an opportunity for police 
officials to delay a suspect's transfer to a police station 
after the initial arrest.  Sharafutdinov agreed that this is 
a potential problem but wondered how it could be enforced, 
adding that "it's hard to control how much time it takes 
 
TASHKENT 00000312  002 OF 005 
 
 
officers to get to the station given our resources." 
However, while the Uzbek law allows 24 hours to process 
detainees at a police station, Sharafutdinov said the average 
is only 1.5 hours and they are revising procedures to make 
this even faster.  Sharafutdinov said the Government of 
Uzbekistan would require extensive communications equipment 
for each officer and police station around the country as 
well as a central monitoring system to record detentions and 
transfers in real-time.  (Comment:  This could be a 
complementary aspect of possible future habeas corpus 
assistance programs, provided progress is first sufficient to 
justify such a commitment of resources.  End comment.) 
 
¶4. (SBU) The U.S. Judge noted that while a 48-hour detention 
is the maximum allowed for most Western countries under 
international law, he believes Uzbekistan can justify its 
72-hour period given its existing structure (which Kosovo has 
recently established as well).  However, the Uzbek law also 
allows for an additional 48-hour extension of initial 
detention as well as an additional 10 days in exigent 
circumstances.  According to the U.S. Judge, these extra 
periods will cause problems for Uzbekistan under 
international scrutiny of its law.  Sharafutdinov was 
forthright that so far in 2008 there have indeed been six 
48-hour extensions approved but no cases in which a 10-day 
extension was requested.  He cited a need for additional time 
to conduct investigations and detailed questions by judges as 
reasons for the six 48-hour extensions that were granted. 
Under the new law only the courts can request an additional 
48 hours, not investigators, which is a significant 
improvement.  Sharafutdinov also lamented that Uzbekistan 
cannot afford the "pre-trial services" packages of background 
data that U.S. courts have access to in order to quickly 
assess the risk level of an arrested suspect, and therefore 
more time is required for investigations after the initial 
arrest.  Uzbek law also does not allow investigators to begin 
investigating a suspect prior to an arrest, which the U.S. 
Judge flagged as a problem. 
 
Probable Cause for Detention 
---------------------------- 
 
¶5. (SBU) The U.S. Judge expressed concern about probable 
cause under the Uzbek statute and stressed that clear 
standards are necessary to assist judges in making important 
decisions about whether to order pre-trial detention of 
suspects.  He underscored the need to weigh probable cause 
before issuing arrest warrants, which requires an examination 
of the level of evidence to determine whether there are 
reasonable grounds to proceed.  In contrast, the standard for 
determining guilt in a subsequent trial should be much 
higher.  Uzbekistan needs to make modifications in order to 
ensure that these are distinct decisions, and clear standards 
would help judges assess the prosecutors' information. 
 
¶6. (SBU) Another important point discussed was that there 
should be no blanket law on detentions; rather, there should 
be a case-by-case determination based on a presumption of 
freedom.  The Uzbek judges need to consider whether a suspect 
is likely to commit another crime and how serious the crime 
is, and the U.S. Judge explained that there may be 
overwhelming evidence of guilt but the person may clearly not 
be a risk in society while awaiting trial.  The U.S. Judge 
said that it is acceptable to make a decision to detain a 
suspect until trial, but that decision should be the result 
of a process. 
 
Public or Closed Hearings? 
-------------------------- 
 
 
TASHKENT 00000312  003 OF 005 
 
 
¶7. (SBU) The prevalence of closed hearings on important 
habeas decisions are also a point of concern under the new 
Uzbek law.  The U.S. Judge agreed that the decision to issue 
a warrant before an arrest is made can be closed because 
otherwise the suspect would be alerted to the impending 
arrest; however, after the arrest this concern is no longer a 
factor and subsequent hearings should be open.  The current 
Uzbek statute does not comply with ICCPR standards in this 
regard, which specify that all hearings should be open.  The 
U.S. Judge clarified that there are exceptions (such as for 
juveniles or cases when there could be embarrassment to a 
victim) but these are narrow. 
 
Right versus Access to Counsel 
------------------------------ 
 
¶8. (SBU) There is now a clear standard under Uzbek law 
regarding the right to defense counsel and it is an 
improvement, according to the U.S. Judge.  However, the 
language makes it possible for prosecutors to convince 
defendants they do not need defense, which would undermine 
the role of defense lawyers since the rights apply "if" 
counsel is participating in the process.  The U.S. Judge 
urged his Uzbek interlocutors not to allow a loophole to keep 
defense lawyers out of the system since they play an 
essential role.  He cited the recent Massaoui trial in the 
U.S., where the defendant had a team of lawyers representing 
his interests despite being totally uncooperative and averse 
to having any defense counsel.  The U.S. Judge asserted that 
the right to habeas corpus is not enforceable without 
independent courts and defense attorneys. 
 
¶9. (SBU) Sharafutdinov acknowledged these points, and noted 
that Uzbekistan has implemented new mandatory lists of 
appointed defense attorneys to eliminate "pocket lawyers," 
who were mere cronies of investigators and did nothing to 
serve their clients.  This ineffective and corrupt defense 
system apparently caused an embarrassing scandal for the 
Government of Uzbekistan in 2002, but Sharafutdinov did not 
elaborate.  He said the Ministry of Internal Affairs is still 
struggling to change the attitudes of prosecutors, who often 
feel that defense attorneys simply obstruct the process. 
Nonetheless, he added that there is increasing recognition 
that having defense lawyers present can help protect the 
interests of prosecutors as well as defendants.  He cited an 
example of a detainee who allegedly jumped to his death from 
a window during an interrogation; the investigators' version 
of events was corroborated because the defense counsel was 
present at the time. 
 
Right to Remain Silent 
---------------------- 
 
¶10. (SBU) The Ministry of Internal Affairs has begun 
distributing leaflets to all detainees informing them of 
their rights, which the U.S. Judge commended publicly at the 
conference and again on the margins as an important step. 
However, while suspects have a right to testify, Uzbek law 
indicates that suspects cannot refrain from participating in 
pre-trial investigation.  Thus, it is unclear whether there 
is a real right to remain silent.  Sharafutdinov conceded 
that this is something that could be amended to make much 
clearer.  However, he said suspects are warned about 
testimony being used as evidence against them in the trial. 
 
How Does the U.S. Use Sensitive Evidence? 
----------------------------------------- 
 
¶11. (SBU) Sharafutdinov noted that there were several 
challenging cases against suspected terrorists in Uzbekistan 
 
TASHKENT 00000312  004.3 OF 005 
 
 
in which authorities were unsure how to proceed with 
sensitive evidence.  He asked how the U.S. maintains a 
balance between protecting defendants' rights and prosecuting 
with the full weight of available evidence, even if it is 
classified.  The U.S. Judge noted that courts can order 
lawyers to remain silent, which he said has worked well. 
Also, even if there is classified evidence, there should not 
be a secret trial.  The best solution is to create an 
unclassified reproduction of the evidence -- omitting the 
 
SIPDIS 
sensitive data -- which the defendant and the defense counsel 
can inspect.  This approach interested the Uzbek officials, 
and it seemed they had not previously thought about 
incorporating defense attorneys into such cases. 
 
Early Empirical Data 
-------------------- 
 
¶12. (SBU) The Rapid Reaction Group, an unregistered human 
rights organization in Uzbekistan, conducted an independent 
analysis of what has actually changed after the first 30 days 
of the law.  The methodology involved anonymous surveys of 
nine officials from the Office of the General Prosecutor, six 
judges of district courts, and four police investigators in 
addition to studying materials of 12 criminal cases in five 
regions of the country.  The Rapid Reaction Group study 
concluded that the situation "has not changed in any way," 
and that the courts have demonstrated a technical inability 
to perform their new roles and the influence of the 
prosecutors remains as strong as before.  The study also 
noted that there has been an increase in paperwork and 
bureaucracy to achieve the appearance of habeas corpus 
procedures, but with no real effect.  The group's field 
observations also concluded that "inspectors and 
investigators often appear for providing testimonies during 
interrogation," whereas defense counsel was rarely present. 
The Tashkent City Bar Association agreed that there are some 
flaws but noted that the law "will be tested by time and 
practice."  Initial data from the MinistQf Internal 
Affairs claims that there are already fewer requests for 
arrest warrants and some requests are beingQrnedQwn by 
the courts (reftel). 
 
Next Steps 
---------- 
 
¶13. (SBU) At the end of the two-hour meeting Sharafutdinov 
acknowledged that "the new law has a lot of loopholes."  He 
also volunteered that "it is premature to call this habeas 
corpus, but it has many elements."  (Note:  This is 
consistent with the analysis of experts at the U.S. 
Department of Justice OPDAT who reviewed the law prior to the 
Tashkent conference and suggests we are on the same page. 
End note.)  Sharafutdinov explained that "there were many 
fights" in the drafting of the legislation, which took place 
over a lengthy time and pitted reformers against those who 
wanted the status quo.  He suggested that the law which 
emerged was the best they could have hoped for at the time, 
and he said "first we'll get used to these new conditions" 
and then consider the next steps. 
 
¶14. (SBU) Tukhtasheva was quick to downplay the need for 
international training assistance, pointing out that the 
Government of Uzbekistan had conducted extensive training 
between the time the new law was passed and the time it went 
into effect.  However, Sharafutdinov quickly disagreed 
(perhaps sensing implications for future cooperation), noting 
that it was difficult to train when the law was not actually 
in effect and that international perspectives are useful. 
(Comment:  Sharafutdinov prefers waiting for at least a year 
to see how the law is implemented before working with 
 
TASHKENT 00000312  005 OF 005 
 
 
international partners like the U.S. on modifying it, but he 
would likely be receptive to a gradual approach involving 
roundtables with other key stakeholders such as the Ministry 
of Justice, focused training with defense attorneys and 
judges, and sessions on why further amendments are necessary. 
 End comment.) 
 
Comment 
------- 
 
¶15. (SBU)  Embassy officers have had several high-profile and 
productive meetings with Sharafutdinov in recent weeks, and 
his willingness to sit down privately with a visiting U.S. 
Judge for two hours to critically examine a law he is proud 
of demonstrates his genuine interest in implementing reforms. 
 His humble statements about systemic flaws and past mistakes 
before the cameras during the plenary sessions were 
apparently not just for public consumption (reftel).  We 
believe the time is right to build on the positive momentum 
generated by this conference, as this may be the most 
significant opportunity to engage the Government of 
Uzbekistan on meaningful legal reform since ABA/CEELI was 
asked to leave in 2006.  This useful meeting on the margins 
of the USAID-funded conference further demonstrates the 
utility of these forums in helping us intensify our dialogue 
with key interlocutors. 
 
NORLAND