This commentary first appeared here in Russian on the website of Moscow-based Ferghana news agency and is reproduced with permission.
Uzbekistan has just adopted a new law regulating the functions of its security services, the recently rebranded State Security Service, or SGB.
The legislation was adopted by the lower house of parliament on March 15 and then approved by the Senate, the Oliy Majlis. President Shavkat Mirziyoyev signed the law into effect on April 5 and the following day it was published in the government’s Narodnoe Slovo newspaper.
The purpose of the law is to outline the legal status of the SGB — its responsibilities, functions, rights, requirements, financial and technical resources, and what physical force, special equipment and firepower may be deployed by its agents.
This has been a logical development of Mirziyoyev’s agenda to overhaul the state’s most powerful entity, which was until earlier this year known as the National Security Service, or SNB. Before the law was adopted, Mirziyoyev fired SNB chairman Rustam Inoyatov and signed the law on the reformatting of the institution. A commentary appended to that decree noted that the “exclusion of the concept of ‘national security’ from the name of the service arises from the need to eliminate factors that could lead to the body’s unjustified expansion of its own powers, since any local problem could be considered a threat to national security.”
This would have appeared to be a cause for joy for Uzbek citizens. Finally, the unbridled competencies of this famed state organ, which has spread terror among millions of people, would be curtailed. But the SGB law has created new causes for concern.
Without dwelling on all the details of this legislation, we will focus just on some worrying details.
Article 12 of the new law forbids state bodies, other organizations or officials from interfering in the operations of the SGB. And Article 37 grants SGB servicemen immunity for actions committed during service. The article states that “State Security Service servicemen cannot face criminal sanctions, be detained or placed in custody without the sanction of prosecutors of the Republic of Karakalpakstan or the Tashkent region or city.”
How is this “immunity” to be understood? How justifiable is this provision? Are there similar attributes in Russia’s law regulating their Federal Security Service or in the legislation of other countries? Fergana put these questions to a group of experts.
Ivan Pavlov, human rights lawyer and activist
Criminal legislation in many countries envisions exceptions in the principle of equality before the law and justice system. For example, Russian legislation contains special carve outs for criminal prosecutions against several groups of people: members of the Federation Council (upper house of parliament) and the State Duma, judges, the president, prosecutors, investigators, lawyers and other categories (military personnel are absent from this list). The Russian Constitution stipulates that this arrangement is in place to enable the unfettered pursuit of professional duties by these people and to avoid them being targeted by unfounded criminal prosecution.
Any such exceptions should not interfere with the process of bringing guilty people to justice and the law should clearly outline the limits of activities subject to immunity and should define the circle of people to whom this immunity is applied.
It is difficult to evaluate the context in which the SGB law in Uzbekistan has been adopted, but in general, any such provision seems unjustified. The wording “servicemen cannot be charged without sanction from a prosecutor” is worrying as it envisions not so much the specifics of any possible criminal case but rather the likelihood that there will be a lack of grounds on which to file charges. Also, the category “servicemen” is quite broad and the need to introduce such exceptions is, to say the least, unclear. This could protect servicemen from any risk of criminal prosecution.
Lev Korolkov, veteran of Russia’s Foreign Intelligence Service, or SVR
The Russian law on the Federal Security Service does not contain a specific clause on immunity. But in the terms of service of FSB officers, it is stated that while they are fulfilling their professional duties, such as are included within their official competencies, they enjoy legal protection.
But Article 6 of the law states that should FSB agents break the law or people’s rights, the head of the relevant department, a prosecutor or a judge is “obliged to undertake measures to restore these rights and freedoms, provide compensation for harm caused and to file charges against the guilty parties in line with the laws of the Russian Federation.” The FSB personnel who allowed for the misuse of authority or the abuse of official powers are liable for whatever punishment is envisioned by the law.
As far as I am aware, legislation in other countries also contains no provisions that exempt security service officers from criminal laws during the execution of their professional duties. On one hand, such a provision grants security service employees additional protections and gives them greater scope for action, but it could also give way to abuse of office. Maintaining this balance in the functions of a state security service is extremely difficult.
I would presume that the idea of immunity for security service personnel may have been advanced back in the time of former SNB chairman Rustam Inoyatov to protect employees involved in the harsh suppression of the Andijan unrest in 2005. But at that time, [the late President] Islam Karimov saw no cause for such a provision since everything depended on his own personal decisions anyway. And now, under this new president, there is a need to formalize this issue through law.
Alisher Ilkhamov, research associate at the School of Oriental and African Studies, University of London
Of course Article 37 of the State Security Service law raises questions. The very title of this article and its first paragraph sound decidedly murky. What does “guarantee from immunity” mean? This term, “immunity,” sounds quite ambiguous. It can be interpreted (and in practice it will clearly be interpreted in this way) as a signal that SGB officers will be outside (or above) the law, including the laws described in the Criminal Code.
It is true that the first paragraph provides a clarification. SGB servicemen “enjoy immunity while on service.” But let us consider this scenario: While carrying out some routine work in an area under their responsibility (while they are on service), an SGB officer picks a fight and starts assaulting a member of the public, let’s call him Citizen A. So what will happen? Will police who come to the scene not be able to detain him?
I can imagine the picture. This delinquent servicemen will show the policemen his papers and they will salute, apologize for causing a disturbance, and back away, while the SGB officer will feel total impunity and continue beating up Citizen A. It will only be several days after this citizen has been assaulted in this way, some five or six days later, that the regional prosecutor will (in theory) be able to file a case against this bullying serviceman.
And in principle, this paragraph contradicts another point, in Article 43, where it mandates that “State Security Service servicemen will face criminal responsibility for illegal acts or inaction and behavior exceeding service requirements.”
But we have to ask, what legislation will prevail when a police unit arrives at the place where the SGB officer is beating Citizen A? The Criminal Code, or Article 37 on the “guarantee of immunity”?
Here we have a collision of legal interpretations and potential discrepancies. And what does this tell us? Mainly, it is that this law did not undergo necessary examination by legal experts and that it was put together quite unprofessionally.
But it is also possible that this provision on the “guarantee of immunity” has been introduced deliberately to mollify former SNB agents, who will, in return for their loyalty, require the legalization of practices that have been in place until this time.
That situation, as we know, was one wherein the SNB operated outside and above the law, beholden only to itself and to rules that were most likely devised by a criminal syndicate rather than on the basis of concepts familiar to any modern security service.
And there is also a political dimension to this issue. If we return to our example of Citizen A, during those five or six days in which the regional prosecutor is considering whether or not to file a case against the servicemen, public unrest might erupt in the community where this victim lives. Indignant relatives and neighbors could begin to demand fairness and justice. The unrest could escalate into riots and the entire situation in this district could become unstable. It would turn out that this point on “guarantee of immunity” would become a source of instability in the country.
So we ask, for what do we need such a service and such a law, if they and the actions pursued in their name bring about results going against the very goals of this same service — namely, maintaining public order?
Would it not be preferable then that the police unit arriving on the scene of an incident should ignore those so-called immunity provisions for the SGB officer and detain him on the spot, thereby halting an act of violence? I would like to ask all this of the people who devised this law and then stuck it before the president for his signature.