September 2009 

On August 13 and 14, Nick Hentoff, ABA Rule of Law Initiative (ABA ROLI) long term legal specialist, conducted a two-day interactive trial advocacy skills training for 30 Tajik advocates. The seminar focused on increasing local advocates’ awareness of the benefits of the adversarial system and how its elements can be incorporated into legal practice under the existing Tajik criminal procedure code. The training also was designed to prepare participants for pending changes to the code, which are expected to introduce some adversarial elements into Tajikistan’s criminal justice system in the near future. Mr. Hentoff used interactive techniques and a custom case file that allowed for small group exercises and group presentations to encourage discussion. The strategic thinking exercises included elements of developing case theory, defense investigation and motion practice. 

There were several notable exchanges during the training, underscoring the need for education about the code. For example, there is not a tradition of defense investigation under the inquisitorial system, thus making the topic a sensitive one. Several advocates claimed that Tajik law prohibited them from including defense investigation in exculpatory or mitigating evidence. The training addressed provisions of the Tajik criminal procedure code, including those that allow for defense participation in pre-trial procedures. Discussions included the problems of potential intimidation and retaliation by investigators and prosecutors, along with possible solutions and safeguards for advocates. Additionally, a discussion was held on the Tajik code’s generous mitigation provisions. A thorough defense investigation into mitigating factors is necessary for the advocate to take advantage of these provisions, which can benefit the client at sentencing.

A portion of the second day was devoted to access-to-counsel issues, a serious problem in Tajikistan. The Tajik Constitution, which allows for immediate and unfettered access to counsel for criminal defendants, is contradicted by a provision of the criminal procedure code that requires an advocate to obtain written consent from a prosecutor or a judge to visit clients in detention. Investigators have abused this provision to hamper advocates’ pre-trial access to their detained clients—sometimes investigators even require written permission for each visit. Mr. Hentoff gave a presentation on the prevailing international access-to-counsel standards. This was followed by a presentation by Tajik Advocate Alisher Majitov, during which he outlined his plans to file a case in the constitutional court to challenge laws and practices which impede defendants’ access to counsel.

These issues were further discussed during a round table. Some participants shared tips for overcoming these obstacles, while a former investigator (retired investigators often become advocates in Tajikistan) offered his insights, which led to a robust discussion of these practices and possible solutions. The training concluded with several advocates offering to collaborate with Mr. Majitov on the preparation and presentation of his case.

To learn more about the ABA Rule of Law Initiative’s programs in Tajikistan, contact rol@staff.abanet.org.