| |
The Human Rights Committee,
established under article 28 of the International Covenant on Civil and
Political Rights,
Meeting on 30 July 2009,
Having concluded its consideration of communication No. 1585/2007, submitted
to the Human Rights Committee on behalf of Mr. Batyrov Zafar under the
Optional Protocol to the International Covenant on Civil and Political
Rights,
Having taken into account all written information made available to it by
the author of the communication, and the State party,
Adopts the following:
VIEWS UNDER ARTICLE 5, PARAGRAPH 4, OF THE OPTIONAL PROTOCOL
1. The author of the communication is Zoolfiya Batyrova, a citizen of
Uzbekistan born in 1971 submitted the communication on behalf of her father
Zafar Batyrov, also citizen of Uzbekistan born in 1946. The author claims
that Uzbekistan violated her father's rights under article 12, paragraphs 2
and 3; article 14 paragraphs 1, 3 (b) and (e); and article 15, paragraph 1,
of the Covenant. The Optional Protocol entered into force for the State
party on 12 December 1995. She is represented by counsel, Verenin S.
THE FACTS AS PRESENTED BY THE AUTHOR
2.1 On 25 September 2006, the author's father was convicted and sentenced to
five years imprisonment under sections 184, paragraph 3, 205, paragraph 2
(a) and (b) and 223, paragraph 2 (c), of the Criminal Code of Uzbekistan,
for "failing to pay taxes in particularly great amounts", "abuse of power of
office, which caused a particularly severe damage" and "Illegal travelling
abroad or illegal exit from the Republic of Uzbekistan".
2.2 On or about 29 May 2006, the author's father, then a manager of a public
gas company as well as a deputy of the regional council of Khorezm region
and a deputy of the Supreme Council of the Republic of Karakalpakstan, was
sent on an official business trip to Ashgabat, Turkmenistan, to participate
in negotiations over the transport of natural gas from Turkmenistan to
Uzbekistan. The trip was prompted by an official invitation letter from the
Turkmen government.
2.3 The author's father was then a resident of the Khorezm Province in
Uzbekistan, near the Turkmen border. To attend the business meetings he
crossed the border from Uzbekistan to the bordering Turkmen Dashoguz region
by car, fulfilling all procedural requirements and formalities at Boundary
Post 1. The author submits that there is an agreement between the two
countries entitled "On movements of citizens and simplification of rules for
citizens who reside in border areas", signed in 2004, which allows the
citizens, residents of Khorezm and Bukhara regions of Uzbekistan to travel
to and from Dashoguz and Lebap regions of Turkmenistan without visas for no
more than three days once a month. The passport of the author's father bears
a stamp, which could confirm that he stayed in Turkmenistan less than three
days. He then used the entry visa issued by Turkmenistan to travel to
Ashgabat by plane.
2.4 On 1 and 2 June 2006, the author's father participated in negotiations
in Ashgabat over the transport of natural gas between the two countries,
which ended with the signature of a protocol on the terms and provisions of
future contracts. On 2 June 2006, the author's father returned to Dashoguz
region, Turkmenistan by plane. He then crossed the border to Uzbekistan
without any incidents through the same Boundary post 1 fulfilling the
necessary procedures of the border control.
2.5 On 25 August 2006, the author's father was arrested and charged with
illegal crossing of the Uzbek-Turkmen border with an expired Uzbek exit visa
issued by the Department for Visas and Registration, and with failing to
obtain consent from the Mayor of Khorezm Province and the Chair of the
Supreme Council of the Republic of Karakalpakstan before leaving for
Turkmenistan in alleged violation of section 223, paragraph 2 (c) of the
Criminal Code of Uzbekistan. Under this provision the travel of officials
abroad requires a special permission. The author argues that the section
223, paragraph 2 (c) of the Criminal Code omits any information on
procedures to obtain such consent, including information on its form, terms
and conditions. Therefore, she claims that when the Mayor of her father's
home province was absent at the time of his departure, he arranged his
departure with the Mayor's Assistant. Furthermore, his trip to Turkmenistan
was for business purposes only. The author has submitted copy of a letter
from the Supreme Council of the Republic of Karakalpakstan stating that no
parliamentary delegation of Karakalpakstan visited Turkmenistan in 2006.
2.6 The author claims that according to Annex 1 to the Decree of the Cabinet
of Ministers No 8 of 6 January 1995 and Instruction No 760 of 1 July 1999
confirmed by the Ministry of Justice travel of Uzbekistan citizen to CIS
member states, including Turkmenistan, does not require exit visa. She also
invokes the terms of another agreement between Uzbekistan and Turkmenistan
entitled "On the crossing of Uzbek - Turkmen border by citizens serving
economic objects, located in border areas of both countries" signed in 2004,
under which the citizens of one country pursuing economic objects may enter,
leave and stay without visas in the territory of the border areas in both
countries on the basis of permissions issued at the border by authorized
state agencies and on the basis of lists of names made available in advance.
The author refers to the correspondence between the Ministry of Foreign
Affairs of Uzbekistan and the public gas company, which authorized her
father's business trip, and claims that such list, including the name of her
father was issued according to the procedures.
2.7 The author's father was also charged with "Evasion of tax or other
payments" under section 184, paragraph 3, of the Criminal Code of
Uzbekistan. Tax evasion is partly defined as "a deceit of tax organs aimed
at hiding and reducing the size of obligatory deductions in favour of the
state or local budget in significant amounts." The author argues that no
information obtained from investigations, be it audit reports or witness
statements, offered any evidence that her father participated in any such
acts.
2.8 The author's father was also charged with "Abuse of Authority" under
section 205, paragraph 2, of the Uzbek Criminal Code. Abuse of authority is
defined partly as "intentional abuse of authority by an official, which
causes [...] significant damage to the rights and interests of citizens or
to the state and public interests." The author argues that neither any
preliminary investigation nor court investigation ever established the
amount of damage caused by the author as a result of any such action.
2.9 On 25 September 2006, the author's father was convicted under sections
184, paragraph 3, 205, paragraph 2 (a) and (b) and 223, paragraph 2 (c) of
the Uzbek Criminal Code and sentenced to five years in prison by the Bagat
District Court. The author complains of numerous procedural violations
during the court proceedings against her father, of partiality of the trial
court and of contradictions in the sentence to the facts of the case.
2.10 She claims that her father's lawyer was not notified of the proceedings
and thus could not defend her father during major parts of the proceedings,
although the court had all his contact details. The lawyer learned about the
start of the court proceeding from a third source. This violation was
pointed out to the court by his lawyer at one of the court hearings, during
which the lawyer learned that the court investigation was complete. The
lawyer appealed this procedural violation and requested that the proceedings
be restarted, however his appeal was rejected. Another appeal requesting to
re-start the proceedings due to new circumstances, namely availability of
new witnesses, was also rejected.
2.11 In addition, the author argues that her father's lawyer was denied
access to meet him in detention. The lawyer complained to the office of the
Prosecutor and to the court, requesting access to the author's father.
2.12 The author claims that there are inconsistencies and contradictions
about facts and evidence in the sentence. Nine pages of defence motions and
another 18 annexes were not examined by the court. The sentence did not
indicate on what grounds the court rejected the evidence and documents
presented by the defence. All these violations were appealed by the author's
lawyer to the Regional Court of Khorezm. Prior to the beginning of the
appeal hearing the lawyer requested a meeting with the author's father,
which was again rejected. He did not even get permission to meet him alone
before the beginning of the hearing in the court building, and only met him
during the hearing. His request was denied by the chair of the Court
collegium which examined the case.
2.13 The author submits that during the appeal hearing, the lawyer pointed
out procedural violations during the trial in the District Court. The appeal
court rejected the claims and confirmed the sentence of the Bagat District
Court. The lawyer then appealed to the Khorezm Regional Court to lodge an
objection under supervisory review, which was rejected on 28 November 2006.
His following appeal to the Supreme Court under supervisory review was
rejected on 16 March 2007.
2.14 On 30 November 2006, the Uzbek Parliament issued a decree entitled "On
pardon in connection with the 14th anniversary of Uzbekistan's
independence". The pardon was not applied to the author's father, despite
the fact that he reached 60 by the time the decree was issued and should
have benefited according to the criteria established. The lawyer appealed to
the Main Department on Enforcement of Sentences and Bagat District Court
requesting to clarify the reasons why the pardon was not applied to the
author. No response has been received.
THE COMPLAINT
3.1 The author claims that her father was convicted illegally for travelling
abroad on business, which did not constitute a threat to national security,
public order, public health or morals or the rights and freedoms of others,
in violation of his rights under article 12, paragraphs 2 and 3 of the
Covenant.
3.2 The author submits that inconsistencies and contradictions about facts
and evidence in the sentence as well as non examination of defence motions
by the courts amount to violation of article 14 paragraphs 1 of the
Covenant.
3.3 The author also claims that her father's lawyer was not notified of the
proceedings and thus could not defend her father during major parts of the
court proceedings and was denied access to meet him in detention in
violation of article 14, paragraph 3 (b). She claims that denial of the
lawyer's request to invite additional witnesses amount to violation of
article 14, paragraph 3 (e) of the Covenant.
3.4 The author argues that her father was found guilty for acts that did not
constitute a crime in violation of article 15, paragraph 1.
STATE PARTY'S OBSERVATIONS ON ADMISSIBILITY AND MERITS
4.1 In its submission dated 15 October 2007, the State party reiterates the
facts as presented by the author and submits that the author's father's
guilt was established on the basis of evidence that was obtained during the
investigation process and corroborated during the court proceedings. It
argues that the author's actions were evaluated correctly and the sentence
determined according to the law.
4.2 It further provides subsequent facts to his case that on 20 August 2007,
the Tashkent City Criminal Court handed down another sentence convicting the
author's father under sections 167, paragraph 3 (a) and (b) on embezzlement
or misappropriation; 179 on false entrepreneurship; 205, paragraph 2 (a),(b)
and (c) on abuse of authority and of official powers; 209, paragraph 2, (a)
and (b) on falsification of documents; 210, paragraph 3 (a), (b) and (c) on
taking bribe; and 242, paragraph 1 on organization of criminal conspiracy,
of the Criminal Code and under article 59 of the Criminal Code of the State
party sentenced him to 12 years and 6 months of imprisonment. The State
party submits that by linking and combining the sentence, issued on 25
December 2006 and 20 August 2007, the author was sentenced to 13 years'
imprisonment. According to the decree on Pardon of 30 November 2006, the
length of the sentence was later reduced by one fourth.
AUTHOR'S COMMENTS ON STATE PARTY'S OBSERVATIONS
5.1 In comments dated 10 December 2007, the author submits that the
observations of the State party do not refute but prove the absence of any
crime on her father's part. She submits that none of the claims of
violations of the Covenant have been refuted by the State party.
5.2 The author submits that the second criminal case examined by the
Tashkent Criminal Court was merely an attempt to correct the mistakes of the
investigation and of the court proceedings in the first case. During the pre
trial investigation for the second criminal case, her father's lawyer filed
numerous complaints about breaches of procedure in the collection and
evaluation of evidence, and violations of his defence rights. All these
complaints were ignored.
5.3 She submits that before the beginning of the second trail, the Judicial
Division of the Tashkent City Court ignored the petitions presented by her
father's lawyer to invite one more lawyer. The criminal case against her
father was not examined in substance during the trial. The author provides a
list of examples related to each section, in which the court did not accept
or examine testimonies and other documentary evidence. If the amount of
material damage caused by her father was so great, why then there were no
civil claims for these amounts from anyone? Requests to invite witnesses
whose testimonies would have been essential in his case were all rejected.
At the same time, none of the requests made by the prosecution side were
rejected.
5.4 The author adds that the protocol of court proceedings was issued 14
days after the sentence was issued. This allowed for falsification and
additions to the protocol, as it contained many inaccuracies. The author
submitted a note to the protocol of court proceedings to the Tashkent
Municipal Court for Criminal Cases.
5.5 She adds that the allegations above also amount to violations of
articles 6, 7, 10, article 14, paragraphs 2, 3 (d) of the Covenant.
AUTHOR'S FURTHER SUBMISSIONS:
6. On 21 March 2009, the author submits that the health condition of her
father has significantly deteriorated. He has been kept under ambulatory
observation at the Cardiologic Centre and was diagnosed with "Ischemic Heart
Disease of Arrhythmic form and Ciliary Arrhythmia of Paroxysmal Form." The
author's father had been diagnosed with hypertension of 1st degree in 2003
in addition to cardiac diseases and benign prostate gland hyperplasia. In
2005, hypertension reached the second degree. In July 2007, in prison,
prison medical staff confirmed Ischemic Heart Disease, Stenocardia Stabile
FK'2, Paroxysmal Ciliary Arrhythmia and Hypertension of the second degree.
In addition, they diagnosed pancreatic diabetes of the 2nd type. The author
claims that these diagnoses show that her father's life is at risk, if no
preventive measures are taken on time. She requests the Committee to
accelerate examination of the case to avoid irreparable damage.
ISSUES AND PROCEEDINGS BEFORE THE COMMITTEE
CONSIDERATION OF ADMISSIBILITY
7.1 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.
7.2 The Committee notes, as required by article 5, paragraph 2 (a) and (b),
of the Optional Protocol, that the same matter is not being examined under
any other international procedure of investigation or settlement. It also
notes that the State party has not contested that domestic remedies have
been exhausted in the case.
7.3 The Committee has noted that the author's allegations about the manner
in which the courts handled her father's case, assessed evidence, qualified
his alleged criminal acts, and determined his guilt, which are said to raise
issues under article 14, paragraphs 1, 3 (b) and 3 (e), of the Covenant. It
observes, however, that these allegations relate primarily to the evaluation
of facts and evidence by the State party's courts. It recalls that it is
generally for the courts of States parties 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 [FN1]. In the absence
of any other pertinent information, the Committee considers that this part
of the communication has been insufficiently substantiated, for purposes of
admissibility, under article 2 of the Optional Protocol.
------------------------------------------------------------------------------------
[FN1] See, inter alia, Communication No. 541/1993, Errol Simms v. Jamaica,
inadmissibility decision adopted on 3 April 1995, paragraph 6.2.
------------------------------------------------------------------------------------
7.4 The Committee notes the author's claims that her father's right under
articles 15, paragraph 1, of the Covenant was violated. However, the author
does not provide sufficient information to illustrate her claims in this
respect. Accordingly, this part of the communication is deemed inadmissible,
as insufficiently substantiated, for purposes of admissibility, under
article 2 of the Optional Protocol.
7.5 The Committee has further noted that in one of her latest submissions
the author also claimed violations of articles 6, 7, 10, article 14,
paragraphs 2 and 3 (d), of the Covenant, which have not been raised before.
It considers that the author has not provided sufficient information to
substantiate these additional claims. The Committee considers that this part
of the communication is inadmissible under article 2 of the Optional
Protocol, for lack of substantiation.
7.6 The Committee considers that the author's remaining allegations, which
appear to raise issues under article 12, paragraphs 2 and 3, of the
Covenant, have been sufficiently substantiated, for purposes of
admissibility, and declares them admissible.
CONSIDERATION OF MERITS
8.1 The Human Rights Committee has considered the communication in the light
of all the information made available to it by the parties, as provided for
under article 5, paragraph 1, of the Optional Protocol.
8.2 The Committee notes the author's claim that her father's right to leave
any country, including his own, under article 12, paragraphs 2 and 3, was
violated. The Committee notes that the State party has not refuted the
author's allegations but merely stated that the charges were based on
evidence obtained during the investigation process and verified in court
proceedings.
8.3 The Committee recalls its General Comment 27 on article 12, where it
stated that the liberty of movement is indispensable condition for the free
development of an individual. It however also recalls that the rights under
article 12 are not absolute. Paragraph 3 of article 12 provides for
exceptional cases in which the exercise of rights covered by article 12 may
be restricted. In accordance with the provisions of that paragraph, a State
party may restrict the exercise of those rights only if the restrictions are
provided by law, are necessary to protect national security, public order,
public health or morals or the rights and freedoms of others and are
consistent with the other rights recognized in Covenant. In General Comment
27, the Committee noted that "it is not sufficient that the restrictions
serve the permissible purposes; they must also be necessary to protect them"
and that "restrictive measures must confirm to the principle of
proportionality; they must be appropriate to achieve their protective
function." In the present case, however, the State party has not provided
any such information that would point to the necessity of the restriction
nor justify it in terms of its proportionality. In these circumstances the
Committee concludes that there has been a violation of article 12,
paragraphs 2 and 3 of the Covenant.
9. The Human Rights Committee, acting under article 5, paragraph 4, of the
Optional Protocol, is of the view that the facts before it disclose a
violation of article 12, paragraphs 2 and 3, of the International Covenant
on Civil and Political Rights.
10. In accordance with article 2, paragraph 3 (a), of the Covenant, the
State party is under an obligation to provide the author with an effective
remedy, including compensation, as well as to amend its legislation
concerning exit from the country to comply with the provisions of the
Covenant. The State party is also under an obligation to prevent similar
violations in the future.
11. 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 180 days,
information about the measures taken to give effect to the Committee's
views.
[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.]
Made public by decision of the Human Rights Committee. |
|
