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1. The author is Abdulkarim
Boimurodov, a Tajik citizen born in 1955. He submits the communication on
behalf of his son, Mustafakul Boimurodov, also a Tajik citizen, born in
1976, currently imprisoned in Dushanbe, Tajikistan. [FN1] He claims that his
son is a victim of violations by Tajikistan of articles 6; 7; 9 paragraphs 1
and 2; and 14 paragraphs 1, 3(a),(b),(d) and (g), of the International
Covenant on Civil and Political Rights. The communication also appears to
raise issues under article 9, paragraph 3. He is not represented by counsel.
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[FN1] The Covenant and the Optional Protocol entered into force in relation
to Tajikistan on 4 April 1999.
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FACTUAL BACKGROUND
2.1 On the evening of 10 October 2000, policemen came to the author's
apartment, where he lived with his son, and without presenting any search or
arrest warrant, searched the premises and arrested his son. From 10 October
until 1 November 2000, the author's son was detained at a temporary
detention centre, and was then moved to an investigation detention centre.
For a total of 40 days he was held incommunicado; during this period none of
his relatives knew where he was, and he had no access to a lawyer.
2.2 From the first day of his arrest, the author's son was allegedly
tortured by policemen from various departments, in order to force him to
confess to charges of terrorism. The torture consisted of beatings with a
truncheon, a pistol handle, and a metal pipe on all parts of the body.
Several toenails were pulled out with pliers. His son sought medical
assistance on 1 and 8 November 2000, and 2 April 2001; the medical history
file states that he had sustained cranial trauma, but other injuries
sustained as a result of the torture are not recorded, such as the fact that
he was missing nails on several toes. Several officers were subsequently
charged in relation to their mistreatment of the author's son, but none were
prosecuted, and all those involved continue to work as policemen.
2.3 Unable to withstand the torture, the author's son confessed to the
charges against him, which related to his alleged involvement in 10
incidents of terrorism, which involved the following offences: participation
in terrorist acts, murder, attempted murder, and unlawful possession and
preparation of explosives. It transpires that charges were pressed only in
relation to three incidents of terrorism: these related to an explosion at a
Korean missionary centre on 1 October 2000, as a result of which 9 people
died; an explosion at the home of the ex-wife of the author's son on 10
October 2000, which severely injured her and killed another person; and an
explosion at a shop. The author notes that the fact his son confessed to
charges relating to all 10 incidents, even those in respect of which charges
were not prosecuted at trial, indicates that his confession was forced.
2.4 At his son's trial in the Supreme Court in March 2001, the presiding
judge was allegedly biased in favour of the prosecution, interrupting the
testimony of the accused and his witnesses when they did not say what the
authorities wanted them to say. Initially, the judge did not want certain
defence witnesses to testify; only on the insistence of his son's lawyer was
their testimony heard. In relation to the bombing of the Korean missionary
centre, these witnesses gave evidence confirming the alibi of the author's
son for the time of the explosion. However, the presiding judge discarded
these witnesses' evidence, on the basis that they were neighbours and
relatives of the accused; the judge instead relied on testimony of
prosecution witnesses who said they had seen the author's son at the scene
of the crime. One prosecution witness who said he was unsure whether he had
seen the author at the scene was subsequently 'threatened' by the judge;
this witness later changed his testimony and confirmed that he had indeed
seen the author's son at the missionary centre at the time in question.
Regarding the bombing of the apartment of the author's former
daughter-in-law, the author claims that the court did not properly
investigate alternative versions of the bombing.
2.5 The court relied on prosecution evidence regarding an explosive
substance discovered in the author's apartment, which was identified by the
authorities as 73.5 grams of ammonal. However, as the author explained to
the judge, he himself had bought the substance, thinking it was sulphur. He
further states that, because there are no experts in explosives in
Tajikistan, he doubts whether the substance was formally analysed at all.
2.6 During the trial, his son retracted his confession, told the judge it
was given under torture, and even named those who abused him. He also
complained that the search of the apartment had been conducted illegally,
and that he had not had any access to family or a lawyer for 40 days. On 13
July 2001, despite these arguments, his son was found guilty of involvement
in all three terrorist acts and sentenced to death. On 12 October 2001, his
appeal to the appellate instance of the Supreme Court was partially upheld;
his conviction on charges relating to the bombing of the shop was set aside
for lack of evidence. However, his conviction for the other two terrorist
attacks was confirmed, as was the death sentence.
2.7 The author requested the Committee to intervene to prevent his son's
execution. On 26 December 2001, the Committee, acting through its Special
Rapporteur, requested the State party not to carry out the execution of the
author's son pending the Committee's consideration of the communication.
Although the State party did not respond to this request, it transpired from
a subsequent submission by the author (1 September 2002) that by decision of
the Presidium of the Supreme Court of 20 June 2002, his son's death sentence
was commuted to 25 years of imprisonment.
THE COMPLAINT
3. The author claims that his son's arrest, trial and ill-treatment whilst
in custody gives rise to violations of articles 6, 7, 9, paragraphs 1 and 2,
and 14 paragraphs 1, 3(a),(b),(d) and (g) of the Covenant.
THE STATE PARTY'S OBSERVATIONS ON ADMISSIBILITY AND MERITS
4.1 By note of 5 March 2002, the State party submitted that the author's
son, a student at the Islamic University, was arrested and charged in
connection with a series of bomb blasts in Dushanbe. Specifically, he was
charged with conspiring and attempting to kill his ex-wife in a bomb blast,
caused by a device installed in a cassette player. The blast severely
injured the woman and killed another person. On 11 October 2000, explosives
and detonators were found in the apartment where the author's son lived. In
the course of the investigation, he confessed to having prepared the
explosive device, together with two accomplices. He was tried in the Supreme
Court and found guilty of terrorist acts, murder, attempted murder, and
unlawful possession and preparation of explosives, and was sentenced to
death. However, as a result of an appeal, his sentence was changed.
4.2 The State party notes that the General Procurator had opened an
investigation in the course of which the participation of Mr Boimurodov in
the explosions would again be reviewed.
AUTHOR'S COMMENTS ON THE STATE PARTY'S SUBMISSIONS
5.1 In his comments on the State party's submission dated 1 September 2002,
the author clarifies that on 12 October 2001, his son's conviction was
altered on appeal by the Supreme Court only in relation to his alleged
involvement in the bombing of the shop; in this regard his conviction was
overturned. However, his conviction in relation to the other two bombings,
and the sentence of death, stood.
5.2 The author states that on 20 June 2002, the Presidium of the Supreme
Court decided to overturn his son's conviction in relation to the bombing at
the Korean missionary centre, and to refer the matter back for further
investigation. It transpires that the General Procurator filed a protest
with the Court, in light of another person's confession to involvement in
that bombing. The conviction in relation to the bombing at the ex-wife's
apartment was confirmed but the death sentence against his son was commuted
to 25 years imprisonment.
5.3 The author contends that the allegations about his son's torture and
unfair trial have not been answered by the State party, and that his son has
still not been provided with an effective remedy in relation to the
violations of the Covenant of which he was a victim.
5.4 On 16 January 2004, the author states that the further investigation
ordered by the Presidium of the Supreme Court on 20 June 2002 had still not
been completed, which, according to the author, constitutes a violation of
his son's right to a fair trial without undue delay. [FN2]
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[FN2] Given the stage this issue was raised by the author, the Committee
decides not to deal with this claim.
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ISSUES AND PROCEEDINGS BEFORE THE COMMITTEE
6.1 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.
6.2 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.
6.3 The Committee notes that, in view of the commutation of Mr Boimurodov's
death sentence in 2002, there is no longer any factual basis for the claim
under article 6 of the Covenant. Accordingly, this claim has not been
substantiated, and is therefore inadmissible pursuant to article 2 of the
Optional Protocol.
6.4 In relation to the author's claims under articles 9, paragraphs 1 and 2,
and 14, paragraph 3(a), the Committee notes that the author has not alleged
that his son was not informed of the charges against him upon arrest, but
that no arrest warrant was presented. Further, there is no information
before the Committee about how, when, or if at all the arrest of the
author's son was sanctioned by the relevant authorities. In the absence of
such information, the Committee considers that the author has failed
sufficiently to substantiate these claims, and accordingly declares them
inadmissible under article 2 of the Optional Protocol. However, the
Committee considers that the facts before it also appear to raise issues
under article 9, paragraph 3 of the Covenant; in that respect, the Committee
considers the Communication to be admissible.
6.5 In relation to the author's claims under article 14, paragraph 1, the
Committee notes that the author challenges the Court's assessment of the
testimony of defence and prosecution witnesses, as well as the analysis of
material discovered in the author's apartment. The Committee 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 the evaluation was clearly arbitrary or amounted to a
denial of justice. [FN3] On the information before it, the Committee
considers that the author has failed sufficiently to substantiate that his
son's trial in the present case suffered from such defects. Accordingly,
this claim is inadmissible under article 2 of the Optional Protocol.
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[FN3] See Communication No.541/1993, Errol Simms v. Jamaica, Inadmissibility
decision adopted on 3 April 1995, paragraph 6.2.
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6.6 In relation to the author's claim under article 14, paragraph 3(d), no
information has been provided in substantiation of the claim that the
author's son was in fact denied the right to legal assistance in the
preparation of his defence at trial. Accordingly, this claim is also
inadmissible under article 2 of the Optional Protocol.
6.7 The Committee considers there to be no impediment to the admissibility
of the author's remaining claims under articles 7, 9, paragraph (3), and 14,
paragraphs (3)(b) and (3)(g), and proceeds to consider them on the merits.
CONSIDERATION OF THE MERITS
7.1 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 son's
criminal case and conviction, including information about the commutation of
the death sentence, it has not provided any information about the substance
of the claims advanced by the author. The State party merely notes that Mr
Boimurodov was tried and convicted for certain offences; it does not address
the author's substantive allegations of Covenant violations.
7.2 In relation to the author's claims that his son's rights under articles
7 and 14, paragraph (3)(g) were violated by the State party, the Committee
notes that 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 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
properly substantiated. In light of the detailed information provided by the
author to the effect that his son was subjected to severe pain and suffering
at the hands of the State party's law enforcement officers, some of whom
were subsequently charged in relation to this mistreatment, and in the
absence of an explanation from the State party, the Committee considers that
the case before it discloses a violation of articles 7 and 14, paragraph
3(g) of the Covenant.
7.3 Similarly, the Committee must give due weight to the author's allegation
of a violation of his son's right under article 14(3)(b) to communicate with
counsel of his choosing. In the absence of any explanation from the State
party, the Committee considers that the facts as presented to it regarding
the author's son being held incommunicado for a period of 40 days reveal a
violation of this provision of the Covenant.
7.4 Further, the Committee recalls that the right to be brought 'promptly'
before a judicial authority implies that delays must not exceed a few days,
and that incommunicado detention as such may violate article 9, paragraph 3.
[FN4] In the present case, the author's son was detained incommunicado for
40 days. In the absence of any explanation from the State party, the
Committee considers that the circumstances disclose a violation of article
9, paragraph 3.
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[FN4] Communication No 277/1988, Teran Jijon v Ecuador, Views adopted on 26
March 1992, at para 5.3; Communication No 1128/2002, Rafael Marques de
Morais v Angola, Views adopted on 29 March 2005, para 6.3.
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8. 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
articles 7, 9, paragraph (3), and 14, paragraphs (3)(b) and (g) of the
Covenant.
9. Pursuant to article 2, paragraph 3(a), of the Covenant, the Committee
considers that the author's son is entitled to an appropriate remedy,
including adequate compensation.
10. 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.
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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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