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1.1 The author of the
communication is Mrs. Barno Saidova, a Tajik national born in 1958. She
submits the communication on behalf of her husband - Gaibullodzhon Saidov,
also Tajik national, born in 1954 and who, at the time of submission of the
communication was detained on death row and awaited execution after being
sentenced to death by the Military Chamber of the Supreme Court of
Tajikistan on 24 December 1999. She claims that her husband is a victim of
violations by Tajikistan of articles 6, paragraphs 1 and 2; 7; 9, paragraph
2; 10, paragraph 1; and 14, paragraphs 1, 2, 3 (b), (d), and (g), and 5, of
the International Covenant on Civil and Political Rights. [FN1] The author
is not represented by counsel.
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[FN1] The Optional Protocol entered into force for Tajikistan on 4 April
1999.
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1.2 On 12 January 2001, in accordance with rule 86 of its rules of
procedure, the Human Rights Committee, acting through its Special Rapporteur
for New Communications, requested the State party not to carry out the death
sentence against Mr. Saidov while his case was pending before the Committee.
No reply was received from the State party in this regard. From the author's
subsequent submissions, it transpired that Mr. Saidov was executed on 4
April 2001.
THE FACTS AS PRESENTED BY THE AUTHOR
2.1 According to the author, on 4 November 1998, approximately 600 armed
combatants who were based in Uzbekistan but of Tajik origin supported one
colonel Khudoberdiev and infiltrated the Leninabad region in Tajikistan.
After occupying several official buildings in the area, they requested an
amnesty for all of Khudoberdiev's collaborators, and their safe return in
Tajikistan.
2.2 The same day, Mr. Saidov, who lived in Khukhandzh, in the invaded region
and was a driver, became acquainted with some of the combatants. He decided
to drive several injured combatants to the hospital and to bury victims of
the fighting between the followers of Kudoberdiev and governmental troops.
Mr. Saidov was armed.
2.3 On 7 November 1998, the combatants began to retreat towards Uzbekistan.
Mr. Saidov went to the Kyrgyz border, where he was arrested by the Tajik
authorities on 25 November 1998. According to the author, her husband, along
with other individuals arrested in the so-called "November events", was
beaten to make him confess. The author was allowed to see her husband in the
police station one week after his arrest. During her visit, she noted that
he had been beaten and that his body bore black and blue bruises. He had a
bruise on top of his right eyebrow, on his thorax, his legs were swollen,
and he was unable to stand; during one month he secreted blood, because of
internal injuries. Allegedly, no medical doctor visited him. The author
contends that her husband was threatened that his wife and daughter would
suffer if he refused to confess guilt. Another individual arrested in the
same context was allegedly shot in the foot, to make him confess.
2.4 According to the author, during the month following the arrest, the
national television constantly broadcast press conferences featuring those
who had "repented" after their arrest, who bore signs of beatings. Her
husband was also shown, and the scar on his right eyebrow was visible.
According to the author, Mr. Saidov's general health status deteriorated as
a consequence of the beatings, in particular his eyesight.
2.5 Although Mr. Saidov's arrest took place on 25 November 1998, he was
officially charged only on 1 January 1999. He was not informed of his right
to legal representation upon arrest. The author was the only family member
who was allowed to see him few times. Her husband's lawyer was not chosen by
the victim but was assigned to him by an investigator and appeared only in
about mid-March 1999. According to the author, he only met once with Mr.
Saidov, during the investigation.
2.6 The trial started in June 1999. The Military Chamber of the Supreme
Court, sitting in Military Unit 3501 in Khudzhand. The hearing took place in
a meeting room with broken windows. No mention of the secret nature of the
trial or of any limitation for the public appears in the court's decision,
according to the author, but a list was prepared and only one family member
per accused was admitted into the courtroom.
2.7 The victim's lawyer was often absent during the trial and many of Mr.
Saidov's interrogations took place in his absence; the lawyer was also
absent when the judgment was delivered.
2.8 According to the author, all of the accused, including her husband,
declared in court that during the investigation they were beaten and
threatened to force them to confess or to testify against themselves or
against each other. However, the Court ignored these declarations and did
not proceed to verify them. According to the author, the presiding judge had
decided to convict the accused by the time of the opening of the trial; for
that reason, he allegedly conducted the trial in an "accusatory manner".
2.9 The author claims that her husband was detained in the Khudzhand
District Police building from 25 November 1998 to 12 January 1999, although
an arrested person was supposed to be kept there only for a maximum period
of three days. On 12 January 1999, Mr. Saidov was transferred to the
investigation centre no1 in Khudzhand and placed in a collective cell with
16 other detainees; the air circulation was insufficient and the cell was
overcrowded. The food consisted exclusively of barley gruel; as her husband
suffered from viral hepatitis before his arrest, he could not digest the
food provided in the detention centre and he required a special diet, but
was unable to obtain one. As result, her husband's stomach was injured and
he was obliged to consume only the food transmitted infrequently by his
family.
2.10 On 24 December 1999, the Supreme Court found Mr. Saidov guilty of
banditism; participation in a criminal organization; usurpation of power
with use of violence; public call for forced modification of the
constitutional order; illegal acquisition and storing of fire guns and
munitions, terrorism and murder, and sentenced him to death. The same day,
he was transferred to death row, and placed in an individual cell measuring
one by two meters, with concrete floor with no bed but a thin mattress. The
toilet consisted of a bucket in one of the corners. According to the author,
her husband, a practicing Muslim, was humiliated to have to pray in such
conditions. On 25 June 2000, Mr. Saidov was transferred to Detention Centre
SIZO No 1 in Dushanbe, where, allegedly, conditions of detention and quality
of food were identical. The author claims that her husband received only
every fourth parcel she sent to him through the penitentiary authorities.
2.11 The author states that she and Mr. Saidov's lawyer appealed the Supreme
Court decision to the President of the Supreme Court of Tajikistan. The
Deputy President of the Supreme Court (and Chairman of the Military Chamber
of the same Court) dismissed the appeal on an unspecified date. The mother
of Mr. Saidov addressed a request for pardon to the President but received
no reply. Mr. Saidov's lawyer introduced a request for pardon to the
presidency's Committee for the Defense of the Citizen's Constitutional
Rights, but did not receive a reply either.
2.12 On 10 May 2001, the author informed the Committee that her husband was
executed on 4 April 2001, despite of the Committee's request for interim
measures of protection. On 12 June 2001, she submitted a copy of the death
certificate, issued on 18 May 2001, which confirmed that Mr. Saidov passed
away on 4 April 2001, without mentioning the cause of death.
THE CLAIM
3.1 The author claims that her husband was a victim of violations of his
rights under article 7 of the Covenant, as during the investigation, in
particular during the two weeks following his arrest, he was tortured by the
investigators in order to make him confess, in violation of article 14,
paragraph 3 (g). When, in court, he and other accused challenged the
voluntary character of the confessions they made during the investigation,
the judge, allegedly cut them short, stating that they were inventing things
and asking them "tell the truth".
3.2 The author claims that article 9, paragraph 2, was violated in her
husband's case, as he was arrested on 25 November 1998 but only officially
charged one month later, on 1 January 1999.
3.3 Article 10, paragraph 1, of the Covenant is said to have been violated
due to the inhuman conditions of detention of Mr. Saidov in Khudzhand and
Dushanbe.
3.4 Article 14, paragraph 1, is said to have been violated, because the
judge of the Military Chamber of the Supreme Court conducted the trial in a
biased manner and imposed limitations on the access of relatives of the
accused to the hearing, as well as denying access to other individuals
wishing to assist, thus violating the requirement of publicity of the trial.
Although not directly invoked by the author, another issue possibly arises
under the above provision, in that Mr. Saidov, a civilian, was sentenced by
the Military Chamber of the Supreme Court.
3.5 Mr. Saidov's presumption of innocence, protected by article 14,
paragraph 2, is also said to have been violated, because during the
investigation, state directed national media constantly broadcast and
published material, calling him and his co-accused "criminals", "mutineers",
etc, thus contributing to a negative public opinion. Later, during the
trial, this resulted in the judge's accusatory approach.
3.6 Article 14, paragraph 3 (b) is said to have been violated, because
during the investigation, Mr. Saidov was deprived, de facto, of his right to
legal representation, in spite of the fact that he risked a capital verdict.
A lawyer was assigned by investigators only during the final stages of the
investigation and Mr. Saidov met him only once, allegedly in violation of
his right to prepare his defense. The author also claims that article 14,
paragraph 3 (d) has been violated, as her husband was not informed of his
right to be represented by a lawyer from the moment of his arrest. Finally,
during the trial, Mr. Saidov's lawyer was frequently absent.
3.7 Mr. Saidov was tried and found guilty by the Military Chamber of the
Supreme Court, whose judgments are not subject to ordinary appeal, in
violation of article 14, paragraph 5, of the Covenant. The only possible
appeal is an extraordinary one and depends on the discretionary power of the
President of the Supreme Court (or his deputies), or the Prosecutor General
(or his deputies). The author considers that this system deprived her
husband of his right of appeal, in violation of the principles of equality
of arms and adversary proceedings, by giving an unfair advantage to the
prosecutor's side. The author adds that even if an extraordinary appeal was
to be submitted, takes place, it is always conducted without hearing and
would only cover matters of law, contrary to the Committee's jurisprudence.
[FN2]
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[FN2] The author refers to the Committee's Views in the cases of Domukovsky
and al. v. Georgia, Communications No. 623-627/1995, adopted on 6 April
1998.
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3.8 The author contends that the above violations led to a violation of her
husband's rights under article 6, paragraphs 1 and 2, as he was sentenced to
death after an unfair trial, on the ground of a confession extracted under
torture.
3.9 In spite of several reminders addressed to the State party with requests
to present its observations on the author's submission, [FN3] and with
requests for clarification of Mr. Saidov's situation, no reply has been
received.
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[FN3] The initial rule 86 request was addressed to the State party on 12
January 2001. A Note verbale was sent to the State party on 18 May 2001,
requesting information on Mr. Saidov's situation and reiterating the rule 86
request. A letter, signed by the Committee's Chairperson was addressed to
the State party on 19 June 2001, with a request for clarification on the
non-compliance with the rule 86 request. Finally, on 3 August 2001, a Note
verbale was addressed to the State party, requesting it to to provide
information on the case (what steps were taken by the State to comply with
the Committee's rule 86 request, on what grounds Mr. Saidov was executed,
and what measures are being taken by the state to guarantee compliance with
such requests in future. On 5 December 2002, the State party was invited to
provide the above requested information.
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STATE PARTY'S FAILURE TO RESPECT THE COMMITTEE'S REQUEST FOR INTERIM
MEASURES UNDER RULE 86
4.1 The author has alleged that the State party breached its obligations
under the Optional Protocol by executing her husband despite the fact that a
communication had been registered before the Human Rights Committee under
the Optional Protocol and a request for interim measures of protection had
been addressed to the State party in this respect. The Committee recalls
[FN4] that by adhering to the Optional Protocol, a State party to the
Covenant recognizes the competence of the Committee to receive and consider
communications from individuals claiming to be victims of violations of any
of the rights set forth in the Covenant (Preamble and article 1). Implicit
in a State's adherence to the Protocol is an undertaking to cooperate with
the Committee in good faith so as to permit and enable it to consider such
communications, and after examination to forward its views to the State
party and to the individual (article 5 (1), (4)). It is incompatible with
these obligations for a State party to take any action that would prevent or
frustrate the Committee in its consideration and examination of the
communication, and in the expression of its Views.
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[FN4] See Piandong v. the Philippines, Communication No. 869/1999, Views
adopted on 19 October 2000.
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4.2 Apart from any violation of the Covenant found against a State party in
a communication, a State party commits grave breaches of its obligations
under the Optional Protocol if it acts to prevent or frustrate consideration
by the Committee of a communication alleging a violation of the Covenant, or
to render examination by the Committee moot and the expression of its Views
nugatory and futile. In the present communication, the author alleges that
her husband was denied rights under Articles 6, 7, 9, 10 and 14 of the
Covenant. Having been notified of the communication, the State party has
breached its obligations under the Protocol, by executing the alleged victim
before the Committee concluded its consideration and examination and the
formulation and communication of its Views. It is particularly inexcusable
for the State to having done so after the Committee has acted under rule 86
of its Rules of Procedure, requesting that the State party refrains from
doing so.
4.3 The Committee also expresses great concern about the lack of State
party's explanation for its action, in spite of several requests made in
this relation by the Committee, acting through its Chairman and its Special
Rapporteur on New Communications.
4.4 The Committee recalls that interim measures pursuant to rule 86 of the
Committee's rules of procedure adopted in conformity with article 39 of the
Covenant, are essential to the Committee's role under the Protocol. Flouting
of the Rule, especially by irreversible measures such as, as in the present
case, the execution of the author's husband undermines the protection of
Covenant rights through the Optional Protocol.
ISSUES AND PROCEEDINGS BEFORE THE COMMITTEE
COMMITTEE'S DECISION ON ADMISSIBILITY
5.1 Before considering any claim contained in a communication, the Human
Rights Committee must, in accordance with rule 87 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, and that
available domestic remedies have been exhausted on the strength on the
material before it. In the absence of any State party's objection in this
regard, it considers that the conditions set forth in paragraphs 2 (a) and
(b) of article 5 of the Optional Protocol are satisfied.
5.3 The Committee has noted the author's claims under articles 6, 7, 9, 10,
and 14, set out above, and has noted that the author's allegations in
relation to the initial stages of Mr. Saidov's investigation relate to a
period prior to the entry into force of the Optional Protocol for the State
party. The author's case, however, was examined by a court, in first
instance, only on 24 December 1999 - i.e. after the entry into force of the
Optional Protocol for Tajikistan. In the circumstances, the Committee finds
that the alleged violations of the Covenant had or continued to have effects
that in themselves constituted possible violations after the entry into
force of the Optional Protocol and are therefore admissible, except the
allegations under article 9, which do not fall into that category, and
therefore are inadmissible under article 1 of the Optional Protocol.
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. It notes
that the State party has not, despite the reminders sent to it, provided any
replies on either the admissibility or the merits of the communication. The
Committee notes that, under article 4, paragraph 2, of the Optional
Protocol, a State party is under an obligation to cooperate by submitting to
it written explanations or statements clarifying the matter and indicating
the measures, if any, that may have been taken to remedy the situation. As
the State party has failed to cooperate in that regard, the Committee had no
choice but to give the author's allegations their full weight insofar as
they have been substantiated
6.2 With regard to the claim that the author's husband was tortured and
threatened following his arrest to make him confess, the Committee notes
that the author has provided the names of the officials who beat her
husband, using baton and kicks, and has described in same details her
husband's resulting injuries. From the documents submitted by the author, it
transpires that these allegations were presented to the President of the
Supreme Court on 7 April 2000, and that he responded that the allegations
had already been examined by the Military Chamber of the Supreme Court and
were found to be groundless. The author argues that her husband and his
co-accused revoked their initial confessions in court, having been extracted
under torture; this challenge to the voluntariness of the confessions was
dismissed by the judge. The Committee notes that the State party has failed
to indicate how the court investigated these allegations, nor has it
provided copies of any medical reports in this respect. In the
circumstances, due weight must be given to the author's claim, and the
Committee considers that the facts as submitted disclose a violation of
article 7 of the Covenant.
6.3 In the light of the above finding and of the fact that Mr. Saidov's
conviction was based on his confession obtained under duress, the Committee
concludes that article 14, paragraph 3 (g), of the Covenant, was also
violated.
6.4 The Committee has taken note of the author's claims under article 10,
paragraph 1, of the Covenant, relating to her husband's detention subsequent
to the entry into force of the Optional Protocol during the investigation
and on death row, due to the lack of medical assistance and the poor
conditions of detention as exposed in paragraphs 2.9 and 2.10 above. In the
absence of any State party's refutation, once again, due weight must be
given to the author's allegations. Accordingly, the Committee concludes that
article 10, pargarphe 1, has been violated with Mr. Saidov's respect.
6.5 The Committee has noted that the author's husband was unable to appeal
his conviction and sentence by way of an ordinary appeal, because the law
provides that a review of judgments of the Military Chamber of the Supreme
Court is at the discretion of a limited number of high-level judicial
officers. Such review, if granted, takes place without a hearing and is
allowed on questions of law only. 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, as long as the procedure allows for due consideration of the
nature of the case. [FN5] In the absence of any explanation from the State
party in this regard, the Committee is of the opinion that the above
-mentioned review of judgments of the Military Chamber of the Supreme Court,
falls short of the requirements of article 14, paragraph 5, of the Covenant,
and consequently, that there has been a violation of this provision in Mr.
Saidov's case. [FN6]
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[FN5] See Reid v Jamaica, Communication No. 355/1989, paragraph 14.3, and
Lumley v. Jamaica, Communication No. 662/1995, paragraph 7.3 .
[FN6] See Domukovsky and al. v. Georgia, Communications No. 623-627/1995.
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6.6 The author further claimed that her husband's right to be presumed
innocent until proved guilty has been violated, due to the extensive and
adverse pre-trial coverage by state - directed media which designated the
author and his co-charged as criminals, thereby negatively influencing the
subsequent court proceedings. In the absence of information or objection
from the State party in this respect, the Committee decides that due weight
must be given to the author's allegations, and concludes that Mr. Saidov's
rights under article 14, paragraph 2, have been violated.
6.7 The Committee has noted the author's claim that her husband's right to a
fair trial was violated, inter alia by the fact that the judge conducted the
trial in a biased mannerand refused even to consider the revocation of the
confessions made by Mr. Saidov during the investigation. No explanation was
provided by the State party for the reasons of that situation. Therefore, on
the basis on the strength of the material before it, the Committee concludes
that the facts as submitted before it reveal a violation of Mr. Saidov's
rights under article 14, paragraph 1, of the Covenant.
6.8 As to the alleged violation of article 14, paragraph 3 (b), in that the
author's husband was legally represented only towards the end of the
investigation and not by counsel of his own choice, with no opportunity to
consult his representative, and that, contrary to article 14, paragraph 3
(d), Mr. Saidov was not informed of his right to be represented by a lawyer
upon arrest, and that his lawyer was frequently absent during the trial, the
Committee once more regrets the absence of a relevant State party
explanation. It recalls its jurisprudence that, particularly in cases
involving capital punishment, it is axiomatic that the accused must be
effectively assisted by a lawyer See for example Aliev v Ukraine,
Communication 781/1997, Robinson v. Jamaica, Communication No. 223/1987,
Brown v. Jamaica, Communication No. 775/1997. [FN7] at all stages of the
proceedings. In the present case, the author's husband faced several charges
which carried the death penalty, without any effective legal defence,
although a lawyer had been assigned to him by the investigator. It remains
unclear from the material before the Committee whether the author or her
husband have requested a private lawyer, or have contested the choice of the
assigned lawyer. However, and in the absence of any relevant State party
explanation on this issue, the Committee reiterates that while article 14,
paragraph 3 (d) does not entitle an accused to choose counsel free of
charge, steps must be taken to ensure that counsel, once assigned, provides
effective representation in the interest of justice. [FN8] Accordingly, the
Committee is of the view that the facts before it reveal a violation of Mr.
Saidov's rights under article 14, paragraphs 3 (b) and (d), of the Covenant.
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[FN7] See for example Aliev v Ukraine, Communication 781/1997, Robinson v.
Jamaica, Communication No. 223/1987, Brown v. Jamaica, Communication No.
775/1997.
[FN8] See, inter alia, Kelly v. Jamaica, Communication No. 253/1987.
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6.9 The Committee recalls [FN9] 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 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 of the Covenant.
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[FN9] See Conroy Levy v. Jamaica, Communication No. 719/1996, and Clarence
Marshall v. Jamaica, Communication No. 730/1996, Kurbanov v. Tajikistan,
Communication No. 1096/2002.
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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.
Saidov's rights under articles 6, 7, 10, paragraph 1, and 14, paragraphs 1,
2, 3 (b), (d), and (g), and 5, of the Covenant.
8. Under article 2, paragraph 3 (a), of the Covenant, the author is entitled
to an effective remedy, including compensation. The State party is under an
obligation to take measures 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.
_____________________________
[Done 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.] |
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