|
1.1 The author of the
communication is Mrs. Kholinisso Aliboeva, an Uzbek national and Tajik
resident, who submits the communication on behalf of her husband, Valichon
Aliboev, also an Uzbek born in 1955, who, at the time of the submission of
the communication was awaiting execution in Dushanbe, following a death
sentence imposed by the Supreme Court of Tajikistan on 24 November 2000. The
author claims that her husband is a victim of violations by Tajikistan of
his rights under articles 2, paragraph 3 (a); 6, paragraphs 1 and 2; 7; and
14, paragraphs 1, 3 (g) and (f), and 5, of the International Covenant on
Civil and Political Rights. While the author does not invoke this provision
specifically, the communication appears also to raise issues under article
14, paragraph 3 (d) in relation to her husband, and under article 7 in as
much as she is herself concerned (notification of her husband's execution).
The author is not represented by counsel The Covenant and the Optional
Protocol entered into force for the State party on 4 April 1999.
-------------------------------------------------------------------------------------------------------------------------------
[FN1] The Covenant and the Optional Protocol entered into force for the
State party on 4 April 1999.
-------------------------------------------------------------------------------------------------------------------------------
1.2 On 11 July 2001, in accordance with rule 92 (old rule 86) of its rules
of procedure, the Human Rights Committee, acting through its Special
Rapporteur on Interim Measures and New Communications, requested the State
party not to carry out the death sentence against Mr. Aliboev while his case
was pending before the Committee. No reply was received from the State
party. By letter of 30 October 2001, the author informed the Committee that
in September 2001 she received a Certificate of Death, pursuant to which her
husband had been executed on 7 July 2001 (i.e. prior to the receipt of the
communication by the Committee The communication was received on 11 July
2001.). [FN2]
-------------------------------------------------------------------------------------------------------------------------------
[FN2] The communication was received on 11 July 2001.
-------------------------------------------------------------------------------------------------------------------------------
FACTUAL BACKGROUND
2.1 Mr. Aliboev arrived in Tajikistan in 1999, to look for work "because of
the poor living conditions" in the Ferghana Valley (Uzbekistan). In
Dushanbe, he became acquainted with one Mulloakhed, who invited him to join
his criminal gang, to which he agreed. According to the author, her husband
was not present at the moment of the formation of the gang and he was not
aware of its previous criminal activities.
2.2 In March 2000, Mr. Aliboev, together with other members of the gang took
a 15 years old boy (U.) hostage and demanded ransom from his father. During
the hostage-taking, Aliboev allegedly only stood guard at the entrance, and,
afterwards U. was brought to his apartment. Aliboev allegedly looked after
the hostage and gave him food and water.
2.3 Allegedly, the father refused to pay the ransom. Allegedly, a member of
the gang ordered as Aliboev to administer an anaesthetic injection to the
hostage, after which one of his fingers was cut off. A photograph and the
finger were sent to the hostage's father, who then paid the ransom.
2.4 On 11 May 2000, officers of the Department for Fight Against Organized
Crime of the Ministry of Interior arrested Mr. Aliboev. According to the
author, he was kept "incommunicado" until 18 May 2000, when his sister
Salima was allowed to visit him. Allegedly, she found him in a poor physical
condition - he was bruised, his face was swollen from beatings, and his body
bore marks of torture. Allegedly, since his arrest, Aliboev had been beaten
constantly and subjected to torture to make him confess guilt and his
internal organs were seriously injured. Some 20 days after his arrest (no
specific date is indicated), he was transferred to an Investigation
Detention Centre (SIZO), suffering pain in his kidneys and stomach. The
author adds that her husband's lawyer was only appointed after his
indictment (the exact date is not provided).
2.5 On 24 November 2000, the Supreme Court of Tajikistan found the gang
guilty of 15 criminal acts (11 armed robberies, one murder and one attempted
murder, and 3 hostage takings). The author points out that notwithstanding
that her husband had participated in only one of the crimes attributed to
the gang he received the maximum sentence, while "active" gang members who
had participated in several crimes received equal punishment or were
sentenced to a prison term.
2.6 The author claims that the sentence of the Supreme Court of 24 November
2000 became executory immediately, and Tajik law does not allow for an
appeal from such convictions. The author's husband did request the
Prosecutor General and the Chairman of the Supreme Court to introduce a
protest following the supervisory procedure, but his claims were rejected.
2.7 The author contends that neither during the investigation nor in court
was her husband offered the services of an interpreter, although he was an
Uzbek, had received his school education in Russian, and only had basic
knowledge of Tajik. He was thus unable to understand the essence of the
charges brought against him nor the witnesses' and victims' depositions. She
contends that Aliboev did not request an interpreter during the
investigation, because of the partiality of the investigator and the torture
he had been subjected to, while in court he was not even asked whether he
needed the services of an interpreter.
2.8 In her letter to the Committee of 30 October 2001, the author explains
that in August 2001 her husband's lawyer was informed by the Supreme Court
of Tajikistan that Mr. Aliboev had been executed. In September 2001 (exact
date not provided), the author received an official notification and a
Certificate of Death, according to which her husband was executed by firing
squad on 7 July 2001. She claims that although the State institutions were
aware of the execution, no one informed her when she applied to them on her
husband's behalf between July and September 2001 but that everywhere she
received "assurances for assistance". She invites the Committee to continue
the examination of her husband's case.
THE COMPLAINT
3.1 The author claims that her husband's sentence was unfair and
disproportionate in relation to the acts he was convicted of, in violation
of article 14, paragraph 1, of the Covenant.
3.2 She also claims that her husband was the victim of violations of his
rights under articles 7 and 14, paragraph 3 (g), of the Covenant, because he
was beaten and tortured after his arrest to make him confess guilt, and the
confession was used against him in court.
3.3 Article 14, paragraph 3 (f), of the Covenant is said to have been
violated, as the author's husband had not been offered the services of an
interpreter.
3.4 Mr. Aliboev's right to have his conviction reviewed by a higher tribunal
is said to have been violated, contrary to the requirements of article 14,
paragraph 5, of the Covenant.
3.5 While she does not invoke the provision specifically, the author's claim
that her husband had been offered the services of a lawyer only upon
presentation of the charges against him may raise issues under article 14,
paragraph 3 (d), of the Covenant.
3.6 The author claims that her husband was arbitrarily deprived of life
following an unfair trial, in violation of articles 6 and 14 of the
Covenant.
3.7 Finally and notwithstanding the fact that the author does not raise the
issue specifically, the communication also appears to raise issues under
article 7, in her own respect, because of the failure of the authorities to
inform the author in advance of the date of her husband's execution, or
subsequently, of the location of his burial site.
ABSENCE OF STATE PARTY COOPERATION
4. By Notes Verbales of 11 July 2001, 5 November 2001, 19 December 2002, and
10 November 2004, the State party was requested to submit to the Committee
information on the admissibility and merits of the communication. The
Committee notes that this information has still not been received. The
Committee regrets the State party's failure to provide any information with
regard to admissibility or the substance of the author's claims. It recalls
that it is implicit in the Optional Protocol that States parties make
available to the Committee all information at their disposal See, inter
alia, Khomidova v. Tajikistan, Communication No. 1117/2002, Views adopted on
29 July 2004, and Maryam Khalilova v. Tajikistan, Communication No.
973/2001, Views adopted on 30 March 2005. [FN3] In the absence of any
observations from the State party, due weight must be given to the author's
allegations, to the extent that these have been sufficiently substantiated.
-------------------------------------------------------------------------------------------------------------------------------
[FN3] See, inter alia, Khomidova v. Tajikistan, Communication No. 1117/2002,
Views adopted on 29 July 2004, and Maryam Khalilova v. Tajikistan,
Communication No. 973/2001, Views adopted on 30 March 2005.
-------------------------------------------------------------------------------------------------------------------------------
ISSUES AND PROCEEDINGS BEFORE THE COMMITTEE
CONSIDERATION OF ADMISSIBILITY
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 communication is admissible under the Optional
Protocol to the Covenant.
5.2 The Committee notes that the same matter is not being examined under any
other international procedure of investigation and settlement.
5.3 With regard to the author's claim under article 14, paragraph 3(g),
concerning the lack of interpretation during the investigation and in court,
the Committee has noted that she had not indicated what steps, if any, her
husband had taken to submit this allegation to the competent authorities and
in court, and what the eventual outcome was. The Committee finds that in
respect of this particular claim, domestic remedies have not been exhausted.
Accordingly, the Committee finds that this part of the communication is
inadmissible under article 5, paragraph 2 (b) of the Optional Protocol.
5.4 The Committee has also noted the author's claim that her husband's
sentence was unfair and disproportionate, in violation of article 14,
paragraph 1, of the Covenant. Although the State party has presented no
observations, the Committee notes that this claim relates to an evaluation
of facts and evidence. It recalls its jurisprudence that it is generally for
the courts of States parties to the Covenant to evaluate facts and evidence
in a particular case, unless it can be ascertained that it was clearly
arbitrary or amounted to a denial of justice See Communication No 541/1993,
Errol Simms v. Jamaica, Inadmissbility decision adopted on 3 April 1995,
paragraph 6.2. [FN4] The material before the Committee does not reveal that
the evaluation of evidence or the conduct of the trial suffered from such
defects. In the circumstances, it considers that the author has failed to
sufficiently substantiate her claim in this relation. Accordingly, this part
of the communication is inadmissible under article 2, of the Optional
Protocol.
-------------------------------------------------------------------------------------------------------------------------------
[FN4] See Communication No 541/1993, Errol Simms v. Jamaica, Inadmissbility
decision adopted on 3 April 1995, paragraph 6.2.
-------------------------------------------------------------------------------------------------------------------------------
5.4 The Committee considers the remainder of the author's claims
sufficiently substantiated, for purposes of admissibility, in that they
appear to raise issues under articles 6, 7, and 14, paragraphs 3 (d) and
(g), and 5, of the Covenant. It proceeds to their examination on the merits.
EXAMINATION 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
required under article 5, paragraph 1, of the Optional Protocol.
6.2 The Committee has taken note of the author's allegation that following
his arrest on 11 May 2000, her husband was beaten and tortured by
investigators. In substantiation, she affirms that Mr. Aliboev's sister had
seen him on 18 May 2000, and he displayed signs of beatings and torture. In
the absence of any State party information, due weight must be given to the
author's duly substantiated claim. The Committee therefore considers that
the facts before it justify the conclusion that Mr. Aliboev was subjected to
treatment in violation of article 7 of the Covenant.
6.3 As the above mentioned acts were inflicted on Mr. Aliboev by the
investigators, with a view to making him confess guilt in several crimes,
the Committee considers that the facts before it also disclose a violation
of article 14, paragraph 3 (g), of the Covenant.
6.4 The Committee notes the author's claim that her husband was not
represented by a lawyer until after his indictment, i.e. during a period
when he was subjected to beatings and torture, and that the State party has
not refuted this allegation. The Committee recalls its jurisprudence that,
particularly in capital cases, it is axiomatic that the accused must be
effectively assisted by a lawyer at all stages of the proceedings See for
example, Aliev v Ukraine, Communication 781/1997, Views adopted on 7 August
2003, Robinson v. Jamaica, Communication No. 223/1987, Views adopted on 30
March 1989, Brown v. Jamaica, Communication No. 775/1997, Views adopted on
23 March 1999. [FN5] In the present case, the author's husband faced capital
charges, and was without any legal defence during the preliminary
investigation. It remains unclear from the material before the Committee
whether the author or her husband requested legal assistance, or sought to
engage a private lawyer. The State party, however, has not presented any
explanation on this issue. Accordingly, the Committee is of the view that
the facts before it reveal a violation of Mr. Aliboev's right under article
14, paragraphs 3 (d), of the Covenant.
-------------------------------------------------------------------------------------------------------------------------------
[FN5] See for example, Aliev v Ukraine, Communication 781/1997, Views
adopted on 7 August 2003, Robinson v. Jamaica, Communication No. 223/1987,
Views adopted on 30 March 1989, Brown v. Jamaica, Communication No.
775/1997, Views adopted on 23 March 1999.
-------------------------------------------------------------------------------------------------------------------------------
6.5 The author further claimed that her husband's right to have his death
sentence reviewed by a higher tribunal according to law was violated. From
the documents available to the Committee, it transpires that on 24 November
2000, Mr. Aliboev was sentenced to death at first instance by the Supreme
Court. The judgment mentions that it is final and not subject to any further
appeal. The Committee recalls that even if a system of appeal may not be
automatic, the right to appeal under article 14, paragraph 5, imposes on the
State party a duty substantially to review, both on the basis of sufficiency
of the evidence and of the law, the conviction and sentence, such that the
procedure allows for due consideration of the nature of the case See Maryam
Khalilova v. Tajikistan, Communication No. 973/2001, Views adopted on 30
March 2005, Domukovsky and al. v. Georgia, Communications No. 623-627/1995,
Views adopted on 6 April 1998, and Saidova v. Tajikistan, Communication No.
964/2001, Views adopted on 8 July 2004. [FN6] In the absence of any
explanation from the State party, the Committee considers that the absence
of a possibility to appeal judgments of the Supreme Court passed at first
instance to a higher judicial instance falls short of the requirements of
article 14, paragraph 5. Consequently, there has been a violation of this
provision See for example, Maryam Khalilova v. Tajikistan, Communication No.
973/2001, Views adopted on 30 March 2005, Aliev v Ukraine, Communication
781/1997, Views adopted on 7 August 2003, Robinson v. Jamaica, Communication
No. 223/1987, Views adopted on 30 March 1989, Brown v. Jamaica,
Communication No. 775/1997, Views adopted on 23 March 1999. [FN7]
-------------------------------------------------------------------------------------------------------------------------------
[FN6] See Maryam Khalilova v. Tajikistan, Communication No. 973/2001, Views
adopted on 30 March 2005, Domukovsky and al. v. Georgia, Communications No.
623-627/1995, Views adopted on 6 April 1998, and Saidova v. Tajikistan,
Communication No. 964/2001, Views adopted on 8 July 2004.
[FN7] See for example, Maryam Khalilova v. Tajikistan, Communication No.
973/2001, Views adopted on 30 March 2005, Aliev v Ukraine, Communication
781/1997, Views adopted on 7 August 2003, Robinson v. Jamaica, Communication
No. 223/1987, Views adopted on 30 March 1989, Brown v. Jamaica,
Communication No. 775/1997, Views adopted on 23 March 1999.
-------------------------------------------------------------------------------------------------------------------------------
6.6 With regard to the author's remaining claim under article 6 of the
Covenant, the Committee recalls that the imposition of a sentence of death
upon conclusion of a trial in which the provisions of the Covenant have not
been respected constitutes a violation of article 6 of the Covenant. In the
current case, the sentence of death on the author's husband was passed, and
subsequently carried out, in violation of the right to a fair trial as set
out in article 14 of the Covenant, and therefore also in violation of
article 6, paragraph 2, thereof.
6.7 The Committee has taken note of the author's claim that the authorities
did not inform her about her husband's execution but continued to
acknowledge her intercessions on his behalf following the execution. The
Committee notes that the law then in force did not allow for a family of an
individual under sentence of death to be informed either of the date of
execution or the location of the burial site of the executed prisoner. The
Committee understands the continued anguish and mental stress caused to the
author, as the wife of a condemned prisoner, by the persisting uncertainty
of the circumstances that led to his execution, as well as the location of
his gravesite. It recalls that the secrecy surrounding the date of
execution, and the place of burial, as well as the refusal to hand over the
body for burial, have the effect of intimidating or punishing families by
intentionally leaving them in a state of uncertainty and mental distress.
The Committee considers that the authorities' initial failure to notify the
author of the execution of her husband and the failure to inform her of his
burial place, amounts to inhuman treatment of the author, in violation of
article 7 of the Covenant See, for example, Khalilova v. Tajikistan,
Communication No 973/2001, Views adopted on 30 March 2005, and Lyashkevich
v. Belarus, Communication No 887/1999, Views adopted on 3 April 2003. [FN8]
-------------------------------------------------------------------------------------------------------------------------------
[FN8] See, for example, Khalilova v. Tajikistan, Communication No 973/2001,
Views adopted on 30 March 2005, and Lyashkevich v. Belarus, Communication No
887/1999, Views adopted on 3 April 2003.
-------------------------------------------------------------------------------------------------------------------------------
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 a violation of Mr.
Aliboev's rights under articles 6, paragraph 2; 7; and 14, paragraphs 1, 3
(d) and (g) and 5 of the Covenant, as well as under article 7 in relation to
Ms. Aliboeva herself.
8. Under article 2, paragraph 3 (a), of the Covenant, the State party is
under an obligation to provide the author with an appropriate remedy,
including appropriate compensation. The State party is also under an
obligation to prevent similar violations in the future.
9. Bearing in mind that, by becoming a 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 and that, pursuant
to article 2 of the Covenant, the State party has undertaken to ensure to
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 case 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 these Views. The State party is also
requested to publish the Committee's Views.
____________________________
Adopted in English, French and Spanish, the English text being the original
version. Subsequently to be issued in Arabic, Chinese and Russian as part of
the Committee's annual report to the General Assembly. |
|