In accusing judge of misconduct, are prosecutors acting in the public interest or in their own?
By Nargiz Hamrabaeva in Dushanbe (RCA No. 586, 07-Aug-09)
Not for the first time, a court in Tajikistan has been accused of handing down excessive sentences. What sets this latest case apart is that the complaint comes from the prosecution service, which does not usually make it its business to seek leniency.
Some analysts say prosecutors are right to try to rein in a judiciary that appears over-fond of heavy sentencing. Others, however, believe the prosecution service is merely trying to undermine judges who are about to be strengthened by judicial reforms.
When the trial in question ended on June 10 in the northern city of Khojand, 29 people were sentenced to between ten and 25 years in prison for a range of charges including murder, money laundering and possession of weapons. Two more received two-year sentences and were released as part of an amnesty.
All 31 were accused of being part of an organised crime group working for Nuriddin Juraev, a local oligarch in the industrial town of Isfara and a former member of the Soghd regional assembly, who is wanted on charges of large-scale embezzlement but is on the run.
The crimes of which they were convicted took place from 1998 to 2007, when the provincial prosecutor launched a case against Juraev, accusing him of using gangland tactics to forcibly acquire or “privatise” assets including a food-processing plant and other industrial units, hotels and cafes, filling stations, and houses and apartments.
It is hard at first sight to understand why prosecutors would oppose a successful outcome to a case which they themselves had brought, against what appears to have been a dangerous and violent group. The murder of which some defendants were convicted was of a deputy chief prosecutor of Tajikistan, Tolib Boboev, in 1999.
Yet at a July 7 press conference in the capital Dushanbe, Prosecutor General Bobojon Bobokhonov described the verdict as “illegal and unfair” and announced that he had lodged a formal protest with the Supreme Court.
“This is the first time I have encountered such lawlessness,” said Bobokhonov. “As early as the preliminary investigative phase, charges of setting up a criminal group were dropped, yet this article [of the criminal code] was the main element in the final verdict was based on. That means the court ignored the investigative documents. As a result, the sentences passed were too harsh.”
Two days after Bobokhon’s press conference, Nur Nurov, the Supreme Court judge who presided at the trial, dismissed the chief prosecutor’s allegations.
“When it comes to Bobokhonov’s statement, only the collegium of the Supreme Court can provide a legal assessment of this judicial process,” he said.
Nurov said it was perfectly legitimate for judges to hand down heavier sentences than requested by prosecutors if they felt it necessary.
He added that there was a popular misconception that “if the prosecution asks for, say, two years, then the final sentence will be less than that”. In fact, he said, there were precedents – he himself had previously handed out death sentences when prosecutors had recommended a 14 jail term.
“This is perfectly legal,” he said.
Analysts are divided about the rights and wrongs of the prosecutor’s allegations.
Parviz Mullojonov, for example, said that in general, courts in Tajikistan routinely imposed unjustifiably harsh sentences, and what made the current controversy so unusual was the fact that prosecutors were protesting.
“Never before, as far as I can remember, has a prosecutor general publicly criticised a judge for sentencing too harshly. As a rule, it’s the reverse – it is the prosecution that recommends the harshest verdicts,” he said.
Legal experts say there were flaws in the case brought before the court.
The main reason why almost all defendants received such long sentences was that they were implicated in organised rather than individual criminal activity. That meant that those accused of economic crimes received the same kind of prison terms as those accused of murder.
“From the start of the trial, those accused of murder should have been treated as a separate category,” said a lawyer who wished to remain anonymous.
Relatives of some of the accused told IWPR that lumping all the defendants together was prejudicial to the outcome.
Umed Vahhobov said prosecutors had recommended a seven-year term for his brother Ghanijon, a customs officer accused of offences that cost the state 2,300 US dollars, but the final sentence was three times that.
“No evidence was presented that he was a member of Juraev’s illegal group,” said Vahobov.
The brother of another convicted man, Saifiddin Vafoev, said he got 20 years instead of the recommended three, and once again he was not personally implicated in organised crime.
Other analysts note that the stand-off between Bobokhonov and the judiciary at a time when the prosecution service is battling to save powers that are likely to be transferred to the courts, under a set of legal reforms due to conclude next year.
While legislation on other elements such as civil law and economic crime has already been passed, the code on how criminal offences are prosecuted and tried is still under discussion.
Analyst Abdullo Qurbonov believes the chief prosecutor’s attack on a Supreme Court judge looks suspiciously like an attempt to show that the judicial system is unfit to take on extra tasks.
The reforms would bring Tajikistan into line with the common international practice where arrest warrants must be approved by a judge, rather than by prosecutors as is now the case.
“Very soon, the new criminal process code will state that arrest warrants can only be issued by the courts,” said Qurbonov. “So it becomes very important for the prosecution to demonstrate to the head of state that judges are incompetent, and to identify other shortcomings in the work of the courts.”
Qurbonov says current legislation gives prosecutors “virtually unlimited powers and immunity for all prosecution state”, which he said had created a sense of “omnipotence”.
A feature left over from Soviet legal practice, these extensive powers have meant that Tajik prosecutors can dominate the courtroom and effectively direct both proceedings and outcome.
While acknowledging that the courts make mistakes and overstep the mark, Qurbonov said the current dispute should not be allowed to derail the general trend towards reform, even in the event that Judge Nurov’s Supreme Court colleagues overturn his decision.
Shokirjon Hakimov, an opposition politician and head of the faculty of law and international relations at the Tajik International University, approves of the plan to clip prosecutors’ wings.
Right now, he says, “the imposition of certain sanctions and the issue of arrest warrants lie exclusively in the hands of the prosecution service, which also has the right to exercise oversight of the courts.
“But in a state that is founded on rule of law, the last word has to lie with the courts.”
The defendants in the Khojand trial are currently appealing against their convictions at the Supreme Court. It is not clear whether the court will respond to Bobokhonov’s protest separately.
The chief prosecutor has warned that if the Supreme Court failed to overturn the sentences, his office reserves the right to prosecute Judge Nurov.
Nargiz Hamrabaeva is a correspondent for the Asia Plus news agency.
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