Germany: Prosecutor Denies Uzbek Victims Justice

From Human Rights Watch

Almatov Decision Hurts Berlin’s Reputation

(Berlin, April 6, 2006) ‘ The decision by Germany’s federal prosecutor not to open an investigation against former Uzbek Minister of Interior Zokirjon Almatov for crimes against humanity will be challenged by Human Rights Watch. The prosecutor’s decision is a blow for victims in Uzbekistan and damages Germany’s reputation as a principled leader on behalf of international justice, Human Rights Watch said today.

On December 12, 2005, eight Uzbek victims of abuses, accompanied by Human Rights Watch, submitted a complaint against Almatov to the German federal prosecutor. They asked the prosecutor to open a criminal investigation against Almatov and 11 other Uzbek government officials for crimes against humanity related to the massacre of hundreds of unarmed citizens on May 13, 2005 in the eastern city of Andijan, and for the widespread and systematic use of torture. Almatov commanded the troops that bore primary responsibility for the mass killings in Andijan and, as interior minister, also oversaw Uzbek prisons and pre-trial detention facilities, where torture is routine. Four of the plaintiffs are victims of the Andijan massacre and four are victims of torture.

‘These victims have suffered horrific crimes and turned to Germany for the justice they could never find at home,’ said Holly Cartner, Europe and Central Asia director of Human Rights Watch. ‘It took tremendous courage for the victims to bring this case, so it is particularly disappointing that Germany has let them down.’

On March 31, 2006, Federal Prosecutor Kay Nehm issued his decision not to go forward with an investigation against Almatov, arguing that the likelihood of a successful investigation and prosecution was ‘non-existent,’ given that Uzbekistan was unlikely to cooperate and an investigation in Uzbekistan would be necessary. The prosecutor apparently gave little weight to the fact that hundreds of victims and potential witnesses now live outside Uzbekistan, including in Germany, Romania, Holland, and Sweden.

What is more, the prosecutor appears not to have considered that he could interview international witnesses such as the former U.K. ambassador to Uzbekistan, Craig Murray, or the former United Nations Special Rapporteur on Torture, Theo van Boven, who had declared their willingness to serve as witnesses in the case. As special rapporteur, van Boven issued a report in 2003 documenting the systematic nature of torture in Uzbekistan.

In his decision, the prosecutor relied on information submitted by the government of Uzbekistan claiming to be undertaking various initiatives to combat torture, but he failed to check any of these claims with the U.N. Special Rapporteur on Torture. He also appears to have ignored the fact that there is no independent access to detention and prison facilities in Uzbekistan and so no mechanism to verify the government’s claims.

The complaint against Almatov was based on German law, which recognizes universal jurisdiction for torture and crimes against humanity. This means that German courts can try and punish the perpetrators of such crimes, no matter where the crimes were committed, and regardless of the nationality of the perpetrators and victims. German law does not require that the accused or the victims be in Germany, although Almatov was seeking medical treatment in Germany when the complaint was filed.

‘The prosecutor should have begun a criminal investigation into Almatov’s alleged crimes as soon as he arrived in Germany and prevented him from leaving,’ said Cartner. ‘The German government was clearly aware of his likely role in the massacre in Andijan. The government had allowed him to enter although it knew that he was about to be put on a visa ban list by the European Union.’

Numerous international legal experts have expressed support for an investigation against Almatov. The former president of the International Criminal Tribunal for the Former Yugoslavia, Antonio Cassese, had submitted an affidavit to the German federal prosecutor stating that Almatov could not benefit from diplomatic immunity as a government official because he had entered Germany for private purposes. Van Boven made a public statement in support of the case against Almatov, and Manfred Nowak, his successor as U.N. Special Rapporteur on Torture, also called for Almatov’s arrest.

‘This decision reinforces the complete impunity that Uzbek government officials enjoy,’ said Cartner. ‘The opportunity to pursue Almatov in Germany presented an especially important opportunity because there are no real prospects for redress in Uzbekistan.’

Uzbekistan has a long record of impunity for serious human rights abuses committed by government agents. Van Boven, in his 2003 report, documented the government’s utter failure to hold accountable those who commit torture. The Uzbek government has taken no concrete steps to address those concerns. The government has also demonstrated that it will not conduct a meaningful investigation or prosecution of the real perpetrators of the Andijan massacre. It has refused repeated calls by the United Nations, the European Union, the Organization for Security and Cooperation in Europe and others for an independent investigation into Andijan. Instead, it has organized a series of show trials of alleged perpetrators that, in the opinion of Human Rights Watch, the E.U., the U.N. High Commissioner for Human Rights and other organizations, did not meet basic international fair trial standards.

In response to the Uzbek government’s refusal to accept an independent international inquiry into the Andijan massacre, the E.U. imposed a visa ban against 12 individuals it considers responsible for the massacre. Almatov is at the top of that list. Nevertheless, a few days before the E.U. ban came into force, Almatov was granted a visa to enter Germany on ‘humanitarian’ grounds, to undergo medical treatment in a Hanover clinic.

The prosecutor’s decision is also disappointing because it is a step backward for the prospect of seeking justice for atrocities through German national courts. Germany has been a leader in creating accountability mechanisms for the most serious crimes under international law and has been a strong supporter of the International Criminal Court (ICC). However, although Germany incorporated the ICC statute into its domestic criminal law in 2002, it has not used these provisions to open a single investigation into allegations of serious human rights crimes committed elsewhere.

In face of the overwhelming evidence available and the number of victims and witnesses living outside Uzbekistan, the prosecutor’s decision not to invoke Germany’s universal jurisdiction legislation and launch a criminal investigation into Almatov’s crimes is particularly troubling.

‘If the prosecutor refuses to invoke Germany’s excellent law on international crimes in this case, it is hard to imagine when he would,’ said Cartner. ‘Germany’s universal jurisdiction legislation seems to exist only on paper.’