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1.1 The author of the
communication dated 17 September 2002 is Mrs. Saodat Khomidova, a Tajik
national. She submits the communication on behalf of her son, Bakhrom
Khomidov, a Tajik citizen born in 1968, at present detained on death row in
Dushanbe, after being sentenced to death by the Criminal Chamber of the
Supreme Court on 12 September 2001. She claims that her son is a victim of
violations by Tajikistan of articles 6, paragraphs 1 and 2; 7, 9, and 14,
paragraphs 1, and 3 (b) and (g), of the International Covenant on Civil and
Political Rights. The communication also appears to raise issues under
article 14, paragraph 3 (e) of the Covenant, although this provision is not
directly invoked. She is not represented by a counsel.
1.2 On 27 September 2002, the Human Rights Committee, acting through its
Special Rapporteur on New Communications and Interim Measures requested the
State party not to carry out the death sentence against Mr. Khomidov while
his case was under consideration by the Committee. No reply was received
from the State party in this respect. [FN1]
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[FN1] The Committee became aware of the fact that the President of
Tajikistan announced, on 30 April 2004, that a moratorium on the executions
of death sentences would be introduced shortly; apparently no execution was
carried out since this date. On 2 June 2004 the lower house of the
Parliament adopted the law "on the suspension of the application of the
death penalty", and on 8 July 2004 it was endorsed by the upper house of the
Parliament. However, to have the law entered into force, it still has to be
signed by the President.
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FACTS, AS SUBMITTED BY THE AUTHOR
2.1 In the night of 26 to 27 February 2000, the author's neighbours, Mr. and
Mrs. Pirnozarov, were shot death at their domicile. On 25 May 2000, the
author's son was arrested near his mother's house in Dushanbe, allegedly
without explaining him the reasons for his arrest. The police are said to
have been assisted by friends and relatives of Mr. and Mrs. Pirnozarov.
2.2 Mr. Khomidov's family was not informed of the arrest. His relatives
unsuccessfully tried to locate him; they only learned that he was arrested
by the police in relation to the murder ten days later. Mr. Khomidov
allegedly was charged with murder one month after his arrest.
2.3 Allegedly, Mr. Khomidov was detained for four months in three different
district police offices as police wanted to force him to confess guilt in
several other crimes. The conditions of detention in these facilities
allegedly were totally inadequate for long periods of detention. No relative
was able to see him until his transfer to the investigation detention centre
in October 2000. The visits took place always in the immediate presence of
the investigators or personnel of the detention centre.
2.4 After the arrest, no lawyer was assigned to the author's son; he was not
informed of his right to be represented by a lawyer. Only after two months
was he provided with a lawyer chosen by the investigators. According to the
author, this lawyer was incompetent and worked in the interest of the
prosecution, without consulting the family on the progress of the
investigation. The consultations between the lawyer and the author's son
always took place in presence of the investigators.
2.5 The author contends that her son was tortured with electric shocks and
was beaten throughout the investigation, forcing him to sign written
confessions prepared by the investigators in advance; the majority of these
confessions were signed in the absence of a lawyer. The author provides the
names of the prosecution officials who she claims tortured her son. She
claims that her son was beaten with batons, and parts of his body were
electrocuted with a metal bar, causing head and ribs injuries. She also
affirms that her son showed her his crooked fingers, a consequence of the
torture used.
2.6 Mr. Khomidov was accused of being a member of a criminal gang, headed by
one N. I. , specialized in robbery. The author's son was charged with ten
acts of robbery and allegedly was the only member of the group to be
prosecuted (five other suspected members of the gang were killed in a police
action in May 2000); he was also charged with the assault of a driver and
the hijacking of his car; he was further accused of illegal possession and
storage of firearms and of participation in an attack against Governmental
troops, and an attempt to blow up the house of a police inspector. Mr.
Khomidov was put under psychological pressure also because the family of Mr.
and Mrs. Pirnazarov, supported by the police, had set fire to his house and
forced his wife and children to leave the premises, while the police
illegally confiscated his car and the furniture of his house. His father's
mill was destroyed and his animals were taken away; his father was beaten
with a rifle butt. Mr. Khomidov allegedly was kept informed of these
incidents by the police in order to put him under additional pressure.
2.7 The author further claims that much of the investigation proceedings
were conducted in the lawyer's absence, thus making the evidence obtained
illegal and inadmissible.
2.8 The Supreme Court judge, S. K., allegedly acted in an accusatory manner.
Mr. Khomidov's lawyer's requests were denied, particularly when he asked to
call supplementary witnesses, and when he requested that a medical expert
examine him to clarify whether he had sustained injuries as a result of the
torture he was subjected to. The only witness of the crime was the 5-year
old daughter of the neighbours, and she was the only one who identified Mr.
Khomidov as the culprit. According to the author, the child's testimony was
the consequence of the police "preparation" she was subjected to. As to the
episode related to the hijacking of a car, the author alleges that the
eyewitnesses could not recognize her son during an identification parade and
in court.
2.9 On 12 September 2001, the Supreme Court found Mr. Khomidov guilty of all
the charges against him and sentenced him to death. According to the author,
the death penalty was imposed on her son because the judge was afraid of
eventual persecution against her by the victims' family. On 13 November
2001, on appeal, the Criminal College of the Supreme Court upheld the
decision. On 3 October 2002, the President of Tajikistan refused to grant
her son a pardon.
2.10 The author adds that according to her son, in August 2002, several
investigators visited him on death row and asked him to confess guilt in
other unsolved crimes dating back 4-5 years, including the killing of some
Members of Parliament. He was apparently told that since he was sentenced to
death, confessing to one or two more crimes would not change his situation.
2.11 On 26 January 2004, the author requested the Committee to reiterate its
request for interim measures for protection, as she had received unofficial
information that her son's execution had been scheduled for early February.
2.12 On 31 March 2004, she informed the Committee that she met her son on 27
March, and that she had found him in bad health and bad psychological
condition. He was very nervous, shouted throughout the meeting, and stated
that he could no longer live in such uncertainty and preferred to be
executed. He allegedly threatened to commit suicide. According to her, he
also had skin problems (permanent itch), a "tumor" in the thorax, and other
health problems, but he received no medical assistance or examination.
2.13 The author reiterates that investigators requested her son to confess
guilt in other crimes. She alleges that her son was beaten by investigators,
as he displayed marks and his face was scratched. She filed no complaint
with the authorities in this respect, as she was afraid that they would
further harm her son or would execute him.
THE CLAIM
3.1 The author claims that her son's rights under article 7 of the Covenant
were violated, as he was beaten and subjected to torture in detention.
3.2 Article 9, paragraphs 1 and 2, are said to have been violated, as Mr.
Khomidov was detained illegally, for a long period of time, without being
informed of any of the charges against him.
3.3 Article 14, paragraph 1, of the Covenant is said to have been violated,
as the court did not observe its obligation of impartiality and
independence. In this context, the author's claim that the judge, under
pressure from the relatives of the murder victims, refused to order a
medical examination to ascertain whether Mr. Khomidov's injuries resulted
from torture or to call witnesses on his behalf, while not specifically
invoked, may raise issues under article 14, 3 (e), of the Covenant.
3.4 The author claims a violation of article 14, paragraphs 3 (b), as her
son was not allowed sufficient time to prepare his defence, and because he
was not offered sufficient time and conditions to meet with his lawyer.
3.5 Article 14, paragraph 3 (g), is said to have been violated as Mr.
Khomidov was forced to testify against himself under duress.
3.6 Finally, the author claims that her son's right to life under article 6,
paragraphs 1 and 2, of the Covenant was violated, because he was sentenced
to death after a trial in which the guarantees in article 14 of the Covenant
were not met.
ISSUES AND PROCEEDINGS BEFORE THE COMMITTEE
4. On 18 September 2002, 2 December 2003, 28 January 2004 and 14 April 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. In the absence of a reply from the State
party, due weight must be given to the author's allegations, to the extent
that these have been properly substantiated. [FN2]
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[FN2] See J.G.A. Diergaardt et al. v Namibia, Case No. 760/1997, Views
adopted on 25 July 2000, paragraph 10.2.
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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 and that domestic remedies have been
exhausted. No challenge from the State party to this conclusion has been
received. The requirements of article 5, paragraph 2 (a) and (b), of the
Optional Protocol have thus been met.
5.3 The Committee considers that the author's claims have been sufficiently
substantiated for purposes of admissibility, in that they appear to raise
issues under articles 6, 7, 9 and 14, paragraphs 1 and 3, (b), (e) and (g),
of the Covenant. It therefore 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, as required under
article 5, paragraph 1, of the Optional Protocol.
6.2 The Committee has noted the author's detailed description of the acts of
torture to which her son was subjected to make him confess guilt. She has
identified by name several of the individuals alleged to have participated
in the above events. In the circumstances, and in the absence of any
explanations from the State party in this respect, due weight must be given
to her allegations. As the author has provided detailed information of
specific forms of physical and psychological torture inflicted upon her son
during pre-trial detention (see paragraphs 2.5 and 2.6), the Committee
considers that the facts as submitted disclose a violation of article 7 of
the Covenant.
6.3 The author has claimed that her son was detained for one month, during
which time he was not informed of the charges against him, and that her
son's detention was illegal, in that he was not brought promptly before a
judge or other official officer authorized by law to exercise judicial power
to review the legality of his detention. In the absence of any State party
observations, due weight must be given to the author's allegations.
Accordingly, the Committee considers that the facts before it disclose a
violation of article 9, paragraphs 1 and 2, of the Covenant.
6.4 The Committee has noted the author's claims that her son was legally
represented only one month after being charged with several crimes and all
meetings between him and the lawyer subsequently assigned by the
investigation were held in investigators' presence, in violation of article
14, paragraph 3 (b). The Committee considers that the author's submissions
concerning the time and conditions in which her son was assisted by a lawyer
before the trial adversely affected the possibilities of the author's son to
prepare his defence. In the absence of any explanations by the State party,
the Committee is of the view that the facts before it reveal a violation of
Mr. Khomidov's rights under article 14, paragraph 3 (b), of the Covenant.
6. The Committee has noted the author's claim that the trial of Mr. Khomidov
was unfair, as the court did not fulfil its obligation of impartiality and
independence (see paragraphs 2.8 and 2.9 above). It has noted also the
author's contention that her son's lawyer requested the court to call
witnesses on his behalf, and to have Mr. Khomidov examined by a doctor to
evaluate his injuries sustained as a result of the torture to which he was
subjected to make him confess guilt. The judge denied his request without
providing any reason. In the absence of any pertinent State party
information on this claim, the Committee concludes that the facts before it
disclose a violation of article 14, paragraphs 1, and 3 (e) and (g), of the
Covenant.
6.6 With regard to the author's claim that her son's right to life under
article 6 of the Covenant has been violated, the Committee recalls its
constant jurisprudence [FN3] that the imposition of a sentence of death upon
the conclusion of a trial in which the provisions of the Covenant have not
been respected constitutes a violation of article 6 of the Covenant, if no
appeal of the sentence is possible. In this case, the sentence of death was
passed in violation of the right to a fair trial as set out in article 14 of
the Covenant, and thus also in breach of article 6.
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[FN3] See Conroy Levy v. Jamaica, communication No. 719/1996, and Clarence
Marshall v. Jamaica, communication No. 730/1996.
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7. The Human Rights Committee, acting under article 5, paragraph 4, of the
Optional Protocol to the Covenant, is of the view that the facts before it
disclose a violation of articles 7; 9, paragraphs 1 and 2; 14, paragraphs 1,
and 3 (b), (e) and (g), read together with article 6, of the Covenant.
8. In accordance with article 2, paragraph 3 (a), of the Covenant, the State
party is under an obligation to provide Mr. Khomidov with an effective
remedy, entailing commutation of his sentence to death, a compensation, and
a new trial with all the guarantees of article 14, or, should this not be
possible, release. 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 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 in Arabic, Chinese and Russian as part of
the Committee's annual report to the General Assembly.] |
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