Subproceso de gestión de almacenamiento de insumos

Mavjuda’s case demonstrates that perpetrators of rape and sexual assault have the option to avoid criminal liability if they accept their guilt and marry the victim.683 _Similarly,

with bodily harm injuries there is a possibility to avoid criminal liability if the parties reconcile.684 _{According to the Criminal Code and Criminal Procedure Code, certain}

criminal proceedings, including physical assault can only begin with the complaint made by a victim, and end when the victim withdraws the complaint.685 _{The laws provide the}

option for petty and medium crimes to be reconciled and therefore the prosecutor may choose to opt out from prosecuting the complaint.686 _{Reconciliation can be complemented}

with a repentance or ‘active apology’ to release the defendant from criminal liability.687 _It

is worth mentioning what ‘reconciliation’ means in the Tajik context. In Tajikistan ‘both historically and in current practice “reconciliation” is not understood as a process by which justice is done, or through which a victim is “made whole”’.688 _{As has been}

discussed above, many victims withdraw their complaints on the ground of ‘reconciliation’ with their husbands. Therefore, reconciliation in Tajikistan exists for a practical reason, which is to stop a complaint from proceeding into the system. Thus it

683 _{Article 5 (3) (of the Criminal Procedure Code) allows reconciliation for rape Article 138 (1) of the} Criminal Code.

684 _{Article 105 of the Criminal Procedure Code.}

685 _{Article 112, 116, 117 (1), 135 (1) and 136 (1) of the Criminal Code. The Criminal Procedure Code for} provides that for the mentioned articles of the Criminal Code a judge can try to reconcile the defendant and the victim and if reconciliation is not reached, the judge passes a decree on initiation of criminal investigation and bringing to trial the defendant. Article 105 of the Criminal Procedure Code.

686 _{Alkon, 2005, p. 9.}

687 _{Article 72 states that a person can be released from criminal liability due to active repentance given that} the crime was committed for the first time. Criminal Code of Tajikistan.

688 _{Alkon, C. 2005. “The Increased Use of Reconciliation in Criminal Cases in Central Asia: A sign of Reform} of Cause for Concern?”, ISRCL, p. 6.

allows perpetrators to avoid criminal liability.689

Many professionals within the criminal justice system see reconciliation as a positive step and the expanded use of reconciliation is seen as a sign of ‘progress’ while disregarding when and with what types of cases and with what types of defendants these processes might be most valuable in the Tajik society.690 _{Without much consideration about}

whether the reconciliation option serves the interests of victims, the main priority is given to the number of cases reconciled. This is believed to be a positive achievement not only by different professionals within the justice system, including defence lawyers, but also by representatives of NGOs working in the field of women’s rights which is justified in the name of family unity (more in chapter 6).

Victims have a very limited or no role at all in the reconciliation process. As the stories above demonstrate there is little concern or even awareness among different professionals in the criminal justice system that victims of crimes should also have their voices heard in the development and application of criminal justice policy. Failure to pursue justice in the interests of women victims becomes even more noticeable in cases of domestic and sexual violence. In rape cases the perpetrator is given a chance to marry the victim while disregarding her desires, or failing to include her in the decision-making process.691 _Quite

often it is her family, the defendant’s family, the prosecuting officer and the judge who determine what is best for her. A senior judge at a municipal court sees her duty as ensuring that the ‘genuine’ victim receives the best resolution possible, which in the context of Tajikistan means for a young girl or woman to have a husband:

‘If the man is not decent enough and after sexual intercourse fails to marry her, even if she doesn’t get pregnant, he still has to marry her. If it is true that he slept with her and she was a virgin I will try to make sure he marries her’.692

689 _{Article 73 provides that defendant may be released from criminal liability due to reconciliation with the} victim (in cases of petty misdemeanour), Criminal Code of Tajikistan.

690 _{Alkon, 2005, p. 6.}

691 _{Interviews with police officers, prosecution officers, judges and victims. Observation, court case reviews,} tapes of victims and defendants’ interrogations.

The judge, along with other parties involved, does not seem to acknowledge the possibility that the victim is traumatised by the experience. The victim’s wish is disregarded and her voice is silenced. To preserve her ‘name,’ her family’s name and her honour she is married off to the defendant, if the latter agrees to marry her.

Studies in other societies acknowledge that for many victims of sexual assault, going through the trial process is like being ‘raped again.’693 _{This ordeal becomes a ‘secondary}

victimisation’ because, apart from the defendant, the victim’s character and identity is also put on trial.694 _{The victim bears the burden to prove that she is trustworthy and}

genuine in her accusations. Dutton points out that whether a specific act fails to fit within the legal definition of sexual assault the psychological impact of that act on the victim is still significant.695 _{However, as the above examples demonstrate the psychological}

implications of rape on victims are disregarded for the sake of preserving the ‘good’ name of the victim and her family in Tajikistan.