“The decision also failed to acknowledge that a number of prominent individuals, including Theo van Boven, the former United Nations Special Rapporteur on Torture who visited Uzbekistan in late 2002, and Craig Murray, the former British ambassador to Tashkent, had made clear their willingness to serve as witnesses in the case.”
From Human Rights Watch
(Berlin, June 22, 2006) ‘ Germany’s new federal prosecutor should reverse a decision not to open a criminal investigation into former Uzbek Interior Minister Zokir Almatov’s responsibility for crimes against humanity, Human Rights Watch said in a legal brief challenging the refusal. The new federal prosecutor, Monika Harms, took office this month, succeeding Kay Nehm.
‘This is a unique opportunity to correct an unconscionable decision and show the world that Germany pays more than lip service to international justice,’ said Holly Cartner, Europe and Central Asia director at Human Rights Watch. ‘The Uzbek victims deserve their day in court, and the new prosecutor can ensure they get it in Germany.’
Prosecutor Nehm’s refusal to investigate came in response to a complaint filed in December 2005 by Uzbek victims of torture and survivors of the May 2005 massacre of unarmed civilians in the Uzbek city of Andijan. Assisted by Human Rights Watch, they asked Germany to invoke its universal jurisdiction laws and pursue a criminal investigation into Almatov’s responsibility for these crimes.
In his decision, issued on March 30, 2006, Nehm argued that the likelihood of a successful investigation and prosecution was ‘non-existent’ since the Uzbek government was unlikely to cooperate and an investigation in Uzbekistan would be required. The decision ignored the availability of hundreds of Uzbek victims and witnesses outside Uzbekistan, including in Germany and a number of countries within easy reach, such as the Netherlands, Switzerland and Sweden.
The decision also failed to acknowledge that a number of prominent individuals, including Theo van Boven, the former United Nations Special Rapporteur on Torture who visited Uzbekistan in late 2002, and Craig Murray, the former British ambassador to Tashkent, had made clear their willingness to serve as witnesses in the case.
Instead, the decision devoted extensive attention and space to recounting Uzbek government claims of steps it had taken to address torture, without making any attempts to confirm or provide independent analysis of these claims. It also overlooked perhaps the most important substantive conclusion of van Boven’s report on Uzbekistan, which specifically addressed the question of high-ranking officials’ knowledge of, and responsibility for torture in the country. He concluded that if these officials did not know about the prevalence of torture, it could only be because they did not want to know.
‘The prosecutor’s arguments are not just unconvincing, but deeply disturbing,’ said Cartner. ‘It is our sincere hope that the new prosecutor will give this case the thorough, principled consideration it so clearly deserves.’
Germany is exemplary in having passed legislation allowing its courts to exercise universal jurisdiction, which reflects the principle that some crimes so offend humankind that courts anywhere should have jurisdiction to try them, no matter where they were committed, and no matter the nationality of the accused or the victims.
German law does not require the presence of the accused or the victims on its soil, although Almatov was in Germany shortly before the initial complaint was filed. He was receiving medical treatment in a Hanover clinic, despite appearing on top of a visa ban list of Uzbek government officials to be refused entry into the European Union. The circumstances of his departure from Germany are still unclear. While not a precondition for the case, Almatov’s presence was a further facilitating factor in his investigation and potential prosecution ‘ an opportunity the German prosecutor failed to act on.
‘This case is a golden opportunity for Germany to give practical meaning to its excellent universal juridiction law,’ said Cartner. ‘The victims exhibited extraordinary courage by turning to Germany to seek justice for horrific crimes they have no prospects of seeing redressed at home. Germany shouldn’t let them down.’
In a letter to Human Rights Watch of June 14, Manfred Nowak, the U.N. Special Rapporteur on Torture, expressed ‘concern’ and ‘disappoint[ment]’ about the German authorities’ failure to initiate a criminal investigation against Almatov despite ‘significant, serious and credible evidence of systematic torture by law enforcement officials in Uzbekistan.’ His predecessor, van Boven, sent a letter to the new prosecutor on June 13, likewise expressing regret about the decision not to open an investigation against Almatov, and reacting to what he termed ‘misrepresentation’ by the former prosecutor of his report on Uzbekistan. The letter reiterated his finding that torture was rampant in the country and that the authorities could not have been unaware of its prevalence.
Both Nowak and van Boven had issued statements in support of the case at the time the original complaint was filed, as had Antonio Cassese, former President of the International Criminal Tribunal for the former Yugoslavia, who in an affidavit submitted to the federal prosecutor in December 2005 argued that Almatov did not enjoy diplomatic immunity from criminal investigation and prosecution in Germany.