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1.1 The author is Irina
Arutyuniantz, a citizen of Uzbekistan born in 1952. She submits the
communication on behalf of her son, Vazgen Arutyuniantz, also an Uzbek
citizen, born 1977, currently imprisoned in the city of Andijan in
Uzbekistan. She claims that her son is a victim of violations by Uzbekistan
of articles 6, 7, 14 paragraphs 2, 3(g) and 16 of the International Covenant
on Civil and Political Rights. [FN1] She is not represented by counsel.
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[FN1] The Covenant and the Optional Protocol entered into force for the
State party on 28 December 1995.
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1.2 The Covenant and the Optional Protocol entered into force for Uzbekistan
on 28 December 1995.
FACTUAL BACKGROUND
2.1 On 31 May 2000, Vazgen Arutyuniantz and another man, Armen Garushyantz,
were convicted in the Military Court in Tashkent [FN2] of the aggravated
murder of two people and of burgling their apartments; they were sentenced
to death. The Court found that in January 1999, the two men had visited the
apartment of one of the victims, to whom they owed money, and killed her by
striking her with a hammer, and then burgled her apartment. It found that in
March 1999, the pair had also killed another man by striking him several
times on the head with a hammer, and then burgled his apartment. The author
states that her son admitted to being present at the scene of each of the
two murders, and to robbery, but maintains his innocence in relation to the
two murders.
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-[FN2] It transpires from the file that the author's co-defendant had been
in the armed services until 1998, when he deserted; no particular claim was
made by the author on the fact that her son was judged by a Military Court.
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2.2 The author states that her son's trial was unfair and that he was
unjustly convicted of murder. His conviction was based on the testimony of
his alleged accomplice, Garushyantz, who changed his testimony several
times. When he was arrested, Garushyantz said that Arutyuniantz, who then
was still at large, had committed the two murders. After Arutyuniantz was
apprehended, Garushyantz admitted that he had lied about Arutyuniantz
committing the murders, in the hope that Arutyuniantz would not be
apprehended and therefore offer no contradictory testimony. Then in Court,
fearing a possible death sentence, Garushyantz again changed his testimony,
this time claiming that Arutyuniantz had killed the first victim, but that
he had killed the second. Despite these inconsistencies, the testimony of
Garushyantz was the basis of her son's conviction for murder.
2.3 The author states there was no evidence and no judicial conclusion as to
whether it was in fact Arutyuniantz or his accomplice who killed one or both
of the victims, despite the requirements of Supreme Court Order Number 10,
which requires that in cases of crimes allegedly committed by a group of
people, the Court must ascertain who played what role in the crime. The
decision of the court simply states that 'Garushyantz and Arutyuniantz
struck (the victims) with a hammer', and there was no consideration of
precisely who struck the blows with the hammer. The author claims that in
such circumstances her son's right to be presumed innocent until proved
guilty was violated. The author states that the Court approached the trial
with a predisposition towards conviction, and that it upheld each and every
accusation leveled against her son under the Criminal Code, even though some
plainly had no application. Thus, her son was charged with the killing of
two or more persons under article 97 of the Criminal Code which, according
to the author, only applies where the murders in question occur
simultaneously. She further claims that there was no evidence of the murders
being committed in aggravating circumstances, as found by the Court. She
submits that the Court's decision simply replicated the indictment, and that
this is further indication of the Court's lack of objectivity.
2.4 The author states that her son was severely beaten after his arrest by
the police for the purpose of extracting a confession about his alleged
participation in the murders. That her son was beaten was established by a
medical examination conducted by the Ministry of Defence on 12 July 1999.
She notes that after her husband went to visit her son in detention, he came
back in a state of shock, as her son was black from bruising. He told his
father that his kidneys were very sore, he was urinating blood, had
headaches and was unable to stand on his heels. The investigator allegedly
told her husband that their son was a murderer and that he would be shot. In
a message sent to his parents from his cell, he implored them to help him,
and said that he was being beaten, but refused to confess because he was not
a murderer. The author states that in October 1999, in despair over his
son's situation, her husband committed suicide.
2.5 Mr. Arutyuniantz appealed to the Supreme Court complaining about the
above matter, with the exception of the allegation of being severely beaten.
On 6 October 2000, the appeal against his murder conviction was dismissed.
THE COMPLAINT
3. The author claims that her son's trial and ill-treatment whilst in
custody gives rise to violations of articles 6, 7, 14 paragraphs 2 and 3(g),
and article 16 of the Covenant.
THE STATE PARTY'S OBSERVATIONS ON ADMISSIBILITY AND MERITS
4.1 By note dated 13 January 2005, the State party submitted that on 28
December 2001, the Supreme Court issued an order commuting Arutyuniantz's
death sentence to a term of 20 years' imprisonment. Further to presidential
'amnesty decrees' dated 28 December 2000, 22 August 2001 and 3 December
2002, Mr. Arutyuniantz's sentence was reduced to 9 years, 4 months and 22
days; he was not eligible to benefit from further amnesty decrees issued on
1 December 2003 and 1 December 2004, because he had violated prison rules.
4.2 The State party submits that the preliminary investigation into the
crimes for which Mr. Arutyuniantz was convicted was conducted in accordance
with the Uzbek Criminal Procedure Code, and that all charges and evidence
were thoroughly assessed. It submits that Arutyuniantz's guilt was found to
be substantiated, and contends that the communication is both inadmissible
and without merit.
ISSUES AND PROCEEDINGS BEFORE THE COMMITTEE
5.1 Before considering any claim contained in a communication, the Human
Rights Committee must, in accordance with rule 93 of its Rules of Procedure,
decide whether or not the case is admissible under the Optional Protocol to
the Covenant.
5.2 The Committee has ascertained, as required under article 5, paragraph
2(a), of the Optional Protocol, that the same matter is not being examined
under another procedure of international investigation or settlement.
5.3 The Committee notes that the author's claim under article 16 has not
been substantiated, as there is no information on file which suggests that
the author's son was denied recognition as a person before the law. Further,
in view of the commutation of Mr Arutyuniatz's death sentence, there is no
longer any factual basis for the author's claim under article 6 of the
Covenant. Accordingly, the Committee finds that these claims have not been
substantiated, and are therefore inadmissible under article 2 of the
Optional Protocol.
5.4 In relation to the author's claims that her son's rights under articles
7 and 14, paragraph (3)(g) were violated, the Committee notes that these
matters were not raised by the author's son in his appeal to the Supreme
Court. The Committee has not been provided with any information to the
effect that the author complained about his alleged mistreatment at the
hands of the police to the State party's authorities. The Committee
reiterates that the requirement that an author exhaust domestic remedies
attaches to each allegation of an alleged violation of the Covenant, not
simply to the decision of a court or tribunal unfavourable to an author.
Accordingly, the Committee considers that the author's claims in relation to
violations of articles 7 and 14, paragraph (3)(g) of the Covenant are
inadmissible under article 5, paragraph (2)(b) of the Optional Protocol.
5.5 The Committee considers there to be no impediment to the admissibility
of the author's remaining claim under article 14(2), and proceeds to
consider it on the merits.
CONSIDERATION OF THE MERITS
6.1 The Human Rights Committee has considered the present communication in
the light of all the information made available to it by the parties, as
provided under article 5, paragraph 1, of the Optional Protocol. It notes
that, whilst the State party has provided comments on the author's case and
conviction, including information about the commutation of the death
sentence, it has not provided any information about the claims made by the
author. The State party merely contends that Mr Arutyuniantz was tried and
convicted in compliance with Uzbek laws, that the charges and evidence were
thoroughly assessed, that his guilt was proved, and that the communication
is both inadmissible and without merit.
6.2 In relation to the author's claim that her son was not presumed innocent
until proved guilty, the author has made detailed submissions which the
State party has not addressed. The Committee recalls that it is implicit in
article 4, paragraph 2, of the Optional Protocol that a State party should
examine in good faith all allegations brought against it, and should provide
the Committee with all relevant information at its disposal. The Committee
does not consider that a general statement about the adequacy of the
criminal proceedings in question meets this obligation. In such
circumstances, due weight must be given to the author's allegations, to the
extent that they have been substantiated.
6.3 The author points to a number of circumstances which she claims
demonstrate that her son did not benefit from the presumption of innocence.
She states that her son's conviction was based on the testimony of an
accomplice who changed his evidence on several occasions, and who at one
point confessed to the having committed the murders himself and having
falsely implicated Arutyuniantz. She also states that the trial court never
made a positive finding of who murdered the two victims; the decision refers
to both accused striking and killing the victims with a single hammer.
6.4 The Committee also recalls its General Comment No 13, which reiterates
that by reason of the principle of presumption of innocence, the burden of
proof for any criminal charge is on the prosecution, and the accused must
have the benefit of the doubt. His guilt cannot be presumed until the charge
has been proved beyond reasonable doubt. From the information before the
Committee, which has not been challenged in substance by the State party, it
transpires that the charges and the evidence against the author left room
for considerable doubt. Incriminating evidence against a person provided by
an accomplice charged with the same crime should, in the Committee's
opinion, be treated with caution, particularly in circumstances where the
accomplice has changed his account of the facts on several occasions. There
is no information before the Committee that, despite their having being
raised by the author's son, the trial court or the Supreme Court took these
matters into account.
6.5 The Committee is mindful of its jurisprudence that it is generally not
for itself, but for the courts of States parties, to review or to evaluate
facts and evidence, or to examine the interpretation of domestic legislation
by national courts and tribunals, unless it can be ascertained that the
conduct of the trial or the evaluation of facts and evidence or
interpretation of legislation was manifestly arbitrary or amounted to a
denial of justice. [FN3] For the reasons set out above, the Committee
considers that the author's trial in the present case suffered from such
defects.
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[FN3] See Communication No.842/1998, Romanov v Ukraine, inadmissibility
decision of 30 October 2003.
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6.6 In the absence of any explanation from the State party, the above
concerns raise considerable doubt as to the author's son's guilt in relation
to the murders for which he was convicted. From the material available to
it, the Committee considers that Mr Arutyuniantz was not afforded the
benefit of this doubt in the criminal proceedings against him. In the
circumstances, the Committee concludes that the author's trial did not
respect the principle of presumption of innocence, in violation of article
14(2).
7. The Human Rights Committee, acting under article 5, paragraph 4, of the
Optional Protocol to the International Covenant on Civil and Political
Rights, is of the view that the facts before it disclose violations of
article 14(2) of the Covenant.
8. Pursuant to article 2, paragraph 3(a), of the Covenant, the Committee
considers that the author is entitled to an appropriate remedy, including
compensation and either his re-trial or his release.
9. By becoming a State party to the Optional Protocol, the State party has
recognized the competence of the Committee to determine whether there has
been a violation of the Covenant or not; pursuant to article 2 of the
Covenant, the State party has undertaken to ensure all individuals within
its territory or subject to its jurisdiction the rights recognized in the
Covenant, and to provide an effective and enforceable remedy in cases where
a violation has been established. The Committee wishes to receive from the
State party, within 90 days, information about the measures taken to give
effect to the Committee's views. The State party is also requested to
publish the Committee's views.
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Adopted in English, French and Spanish, the English text being the original
version. Subsequently to be issued also in Arabic, Chinese and Russian as
part of the Committee's annual report to the General Assembly. |
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