New Law of the Republic of Tajikistan "Military Duty and Military Service" сan legitimize the "Raid"
Organizations of Human rights in Tajikistan and CIS thank the Government Commission on drafting the Law of Tajikistan "Military Duty and Military Service" for the publication of the law on the official website of the Ministry of Justice of the Republic of Tajikistan. We welcome the initiative of the Government Commission, as a broad discussion of draft laws gives possibility to realize the right of citizens to participate in the development of regulations. Unfortunately, the civil society representatives were not included in the development process of the draft law, which would let to discuss the situation concerning human rights and democratic governance military duty and military service.
After reviewing the draft law and analyzing its content, we would like to draw your attention to Part 5 of Article 36 of this law draft, which, if adopted, would legitimize arbitrary detention during the appeal.
The practice of arbitrary detention of persons of military age is one of the most widespread violations of human rights and freedoms in the course of conscription for military service in the Republic of Tajikistan. The arbitrary detention of citizens to pass the appeal actions is popularly known as "Raid." "Raid" is an illegal method of appeal, which is expressed in violation of procedure of appeal of citizens without prior service of the summons on the part of the military commissariat, representatives of the police and local authorities. The raid carried out in public places, houses and apartments in order to drive the citizen to the military commissariat to pass the appeal events and further service. Since the raids take place in a chaotic manner, that is minor citizens, foreign citizens, citizens with a delay, and exemption from conscription are caught and taken to military commissariat. During arbitrary detention, are also subject to a violation of fundamental rights such as the inviolability of the home, access to a fair court, the right to health, freedom from abuse. Victims of forced detentions are not only young people, but also members of their families can be abused and beaten.
The problems of raids and other violations of the appeal process a lot of time were raised by human rights defenders, activists and journalists of the country. In 2014, the president of the country Emomali Rahmon in his speeches twice drew attention to violation of appeal process of citizens and instructed to completely eliminate the illegal methods of appeal into the National army.
However, in the text of the draft law provides for a norm that can legitimize arbitrary detention. Part 5 of Article 36 of the law draft states: "In the case of non-receipt of the summons on the part of the draftee, his father or his mother, adult family member and / or without a valid reason not to attend the time specified which is indicated in the summons to activities related with the appeal to the military service, ensure his appearance rests with the bodies of internal affairs on the basis of a written request of the military commissariat.”
This provision has two crucial moments.
The first is the imposition of duties on obtaining the summons for the family members of the draftee. This provision is contrary to part 2 of Article 36 of the law draft, which states that citizens who liable to appeal are required to obtain the summons of the military commissariat on warrant. Family members are not responsible for the actions of an adult family member. The summons is an invitation in order to pass appeal activities not for family members, but for the draftee. Cancellation of the summons on the part of family members is a legal right, and cannot serve as the basis for the emergence of civil or criminal liability of the draftee.
The second important moment is that secure the attendance of the draftee lays to the representative bodies of the internal affairs. Although the law draft does not specify exactly where attendance is provided, but given the current practice should be assumed that the attendance will be provided exactly in the draft board, and not in the internal affairs bodies.
This provision is contrary to Article 19 of the Constitution of the Republic of Tajikistan and Article 9 of the International Covenant on Civil and Political Rights. Article 19 of the Constitution provides that no one shall be subjected to arrest and detention without legal justification. According to Article 9 of the ICCPR, "Everyone has the right to liberty and personal inviolability. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.” Providing attendance bodies of internal affairs is a restriction of freedom of the citizen. Restriction of the right to freedom should be carried out only if there are sufficient legal grounds for believing that a citizen has committed an administrative or criminal offense. Absence of a citizen for the passage of the draft board and medical examination without reason not an administrative offense under Tajik law. The law book of Administrative Offences of the Republic of Tajikistan does not provide liability for failing to pass appeal events without reason, respectively, officials of the Interior incompetent to carry out forced military recruitment drive in to perform military duty citizens. Even with a legislative provision for such an offense, officials of the internal affairs bodies do not have the right to bring a citizen in military commissariat for military duty of citizens. Forced drive in the internal affairs bodies should be made only for the purpose of drawing up the administrative protocol, provided that the drafting of the protocol cannot be done ate the place, or the person who has committed an administrative offense does not have any identification documents, and if protocol is mandatory. In other cases, forced drive is regarded as a violation of the Code of Administrative Offences and the restriction of the freedom of the citizen.
The Criminal Code of the Republic of Tajikistan provides criminal penalties for evading regular appeal for military service. According to the comments of the Criminal Code avoidance considers when citizen after receiving the summons did not appear within the specified time to the appeal event, without having any reason. Binding factor in this situation would be the summons received by draftees. Any detention in case of not receiving the summons by the citizen will be considered illegal.
Based on the above, we call the Government Commission on the draft Law "Military Duty and Military Service" change Part 5 of Article 36 of the draft law "Military Duty and Military Service," to count out a norm regarding the responsibility of parents and relatives of draftees for the denial of the summons. Also, exclude the powers of the Interior bodies to the attendance of the draftee and adopt rules as follows:
"In case of absence of the draftee in the period specified in the summons for events related to the conscription without respectable reason, appealed person prosecuted under the laws of the Republic of Tajikistan."