E. U. v. Uzbekistan

The author of the communication is E. U., a national of Uzbekistan born in 1957. She claims to be a victim of a violation, by Uzbekistan, of her rights under articles 7, 9 (1 to 5), 10 (1), 12 (1) and (2), 14 (1), 17, 18, 19, 21 and 26, each read separately and in conjunction with articles 2 (1) and (3) of the Covenant. The Optional Protocol entered into force for Uzbekistan on 28 December 1995. The author is represented by counsels.

The author, a human rights defender, was detained on 25 occasions between 2001 and 2017. On seven occasions the author was detained in psychiatric institutions and on 18 occasions she was detained by the police.

In 2001, the author was apprehended by police on her way to a demonstration and taken to the Tashkent City Psychiatric Hospital No.1. There she was evaluated by a medical commission and diagnosed with schizophrenia on 7 April 2001. The Psychiatric Hospital requested the Mirzo Ulugbek District Court to authorize the author’s involuntary hospitalization and treatment, which the court did on 10 April 2001. The author remained in the Hospital until 30 June 2001. She was subsequently involuntarily hospitalized and treated on the basis of court decisions, which were based on psychiatric evaluations, between 27 August and 30 December 2002, 27 August and 27 October 2005 7 March and 1 June 2016, and 1-23 March 2017. She was also kept in psychiatric detention for shorter periods of time on 6 November 2001 and on 11 and 12 April 2017, without any legal basis explained to her. Since September 2006, the author has been under continuous involuntary outpatient treatment.

In the same period on 18 occasions the author was arrested and detained by police and/or national security service for periods of time lasting from a few hours to several days. The arrests happened usually while the author was attending peaceful protests or monitoring the use of forced labour on the cotton fields. There was never a record of detention, she was interrogated, beaten on some occasions, searched on many occasions, including, on two occasions, cavity searched, her documents, camera, memory sticks and computers on some occasions were seized, photographs and information was deleted. The author complained to the police or prosecutor’s office in some cases. She received either a response that her allegations could not be confirmed, or no response at all.

On 24 August 2006, the Mirobod District Court declared the author legally incompetent following the request by the Tashkent Mirobod District Prosecutor and based on psychiatric conclusion No. 110 dated 17 December 2002, according to which the author suffered from schyzofrenia, could not understand her actions and needed a guardian.

In 2014, the author applied for a biometric passport and exit visa. While her biometric passport was issued on 1 December 2014, she was not issued with an exit visa. Further to her complaints to different authorities, on 7 March 2018, the Ministry of Interior informed her that her request had been rejected on 23 January 2015, without providing any explanation.

According to the author she could not exhaust domestic remedies because since 2006 she was deprived of her legal capacity and did not have direct access to courts. She did not have an appointed guardian until 2018, when her lawyer was finally appointed as her guardian by the khokim. Since she did not receive the court decisions in relation to her involuntary hospitalizations in 2001 and 2002, she could not appeal them. She also claims she was scared of retaliation from the state authorities if she complained and that given the State Party’s human rights record, there was no prospect of success and no effective domestic remedy for her to exhaust. Regarding the delay in submission, the author claims that she was afraid of the repressions by the State Party if she escalated her complaints outside the country. Only in 2016-2017, with the change of the regime, she felt that she could complain to the Committee.

The author claims violation of article 7 of the Covenant for her involuntary psychiatric hospitalization, conditions of detention and abuse by the personnel; for her forced medication since 2006, which was causing her severe side effects; as well as for humiliating treatment, physical and verbal abuse by police officers while in police detention.

She claims that her treatment while in psychiatric detention was inhumane, including denial of access to medical documents, physical and verbal abuse by hospital officials, and restriction of the visits of her family members, colleagues and lawyer among other.

The author claims that her involuntary psychiatric detention was not “in accordance with procedure established by law” , it was not medically justified , not necessary or proportionate and thus in violation of her rights under article 9(1) of the Covenant. The arrest and detention by law-enforcement officials were unlawful and arbitrary without explanation of reasons and without a proper record.

Under article 9 (2) of the Covenant, the author claims that her right to be informed of the reasons for her arrest and detention was violated during her involuntary confinement to psychiatric institutions and arrest by law-enforcement officers.

Her right to be brought promptly before a judge, as protected by article 9 (3) of the Covenant, was violated when she was kept by police on 6 November 2001 for ten days and then released without charge; and on 27 August 2005, when she was arrested by the police and charged with disrespecting State emblems under article 215 of the Criminal Code, and then detained at the Tashkent City Psychiatric Hospital No 1 without a court order for 52 days.

Under article 9 (4) of the Covenant, the author claims that she was not brought to court to verify the legality of her deprivation of liberty in psychiatric and police detention.

Under article 9 (5) of the Covenant, the author claims that she was not provided with compensation regarding any of the 25 periods of unlawful detention.

Under article 12 (1) of the Covenant, the author submits that her access to cotton fields was repeatedly obstructed by police arrests, without any justification. The unjustified rejection of her application for exit visa prevented her from leaving Uzbekistan, in violation of article 12 (2) of the Covenant.

The author claims that she was denied access to court, in violation of article 14 (1) of the Covenant, as she was declared legally incompetent, which interfered with her ability to protect herself legally. It was arbitrary and was not based on independent medical evidence.

The author claims a violation of her right to privacy, family life and home, as protected under article 17 of the Covenant, in particular through forced psychiatric detention and actions by police officers in response to her human rights-related activities. The author also claims to have been subjected to unlawful attacks to her honour and reputation as a human rights defender by being diagnosed with schyzophrenia, confined to psychiatric institutions and forcefully medicated there.

The author claims that her involuntary hospitalization on 7 March 2016 was connected to her interest in Islam and therefore violated her rights under article 18 of the Covenant.

The author claims that contrary to articles 19 and 21 of the Covenant she was subjected to persecution for exercising her freedom of expression relating to her human rights work.

The author claims violation of article 26, read in conjunction with article 2 (1), of the Covenant because the abuses against her amount to discrimination by the State Party on the basis of her human rights work.

The author finally claims that the right to an effective remedy under article 2 (3) of the Covenant was violated with respect to each of the violations described above. The vast majority of her complaints were ignored and she was not provided with reparation for multiple violations of her rights.

On 9 November 2019, the State Party submitted its observations on admissibility and the merits of the present communication. The State Party contends that the communication is inadmissible because the author failed to exhaust domestic remedies on all of her claims.

Regarding the author’s argument that she did not have access to domestic remedies because she was deprived of legal capacity, the State party refers to the Custodianship and Guardianship Act of 2 January 2014 which provides that the protection of interests of a person deprived of legal capacity is performed by a guardian. The State Party thus notes that she did not use article 315 of the Civil Procedure Code, which allows individuals to request the reinstatement of their legal capacityin court.

According to the State Party, the author’s allegations about possible retaliation by the authorities are unsubstantiated by reliable evidence.

The State Party argues that as a person deprived of legal capacity, the power of attorney signed by the author and authorizing counsels to represent her in the present case before the Committee is invalid.

The State party denies any violation of the author’s rights under the Covenant. According to the State Party, the author’s psychiatric hospitalization was necessitated by her aggressive behavior towards her neighbours, medical personnel visiting her at home, as well as the petition from the local self-governing body makhallya ‘Feruza’, requesting the author’s psychiatric evaluation in view of her behaviour. The hospitalization of the author was based on court decisions and psychiatric evaluations.

Regarding the author’s police detention, the State Party explains that keeping the police detention records is limited to five years and it is impossible to find information concerning the author’s claims earlier than 2014.

On 13 February 2020, the author submitted her comments to the State Party’s observations accusing the State Party of staining her reputation by providing information irrelevant to her submission. The author claims that the State Party failed to provide supporting documents to prove that her hospitalization was initiated by the concern of the community elders. She claims that the hospitalization was rather connected to the likely monitoring of forced labour at the cotton fields, just like her hospitalizations in 2002 and 2016.

The author reiterates her claim that she did not have direct access to court to request the restoration of her legal capacity, and that despite that constraint she nevertheless did submit an appeal. She disagrees with the State Party that she could have filed an appeal together with her guardian because by the State’s fault, no guardian was appointed for her until 2018. She maintains her claim of futility of the domestic remedies in her case. She refers to the State Party’s record related to the treatment of human rights defendants to confirm her claims of feared retaliation.

The author relies on the Committee’s Rules of Procedure claiming that she can be represented by a counsel before the Committee.

The author reiterates her claims on the merits.

On 20 April 2020, the State Party submitted its rejoinder and submits supporting documents. The State Party clarifies that the information about the author preceding 2001 was submitted not to disrepute the author, but to dismantle her claim about punitive psychiatric treatment.

The State Party disagrees with the author’s claim that the guardian was appointed to her only in 2018 and that because of this she could not have appealed the 2006 court decision depriving her of legal capacity. The State Party reiterates its previous information, that according to the Custodianship and Guardianship Act, the guardian can be appointed only based on a written consent, which was not the case of the author. Therefore, in the absence of such a consent the khokim could not appoint a guardian. In such situations, the Act provides that, if within one month a legal guardian is not appointed, the functions of guardianship are performed by local guardian authorities, which in the author’s case was the district healthcare organization.

On 23 October 2020, the author responded that no new points of relevance have been raised by the State Party that would necessitate a new submission by the author.

Before considering any claim contained in a communication, the Committee must decide, in accordance with rule 97 of its rules of procedure, whether the communication is admissible under the Optional Protocol.

The Committee has ascertained, as required under article 5 (2) (a) of the Optional Protocol, that the same matter is not being examined under another procedure of international investigation or settlement.

The Committee notes that the events in the author’s case took place between 2001 and 2017, while her submission to the Committee was filed on 1 June 2018. The Committee recalls, that although there are no fixed time limits for the submission of communications under the Optional Protocol and mere delay in submission does not of itself involve abuse of the right to submit a communication, the Committee expects a reasonable explanation justifying a delay. According to rule 99 (c) of its rules of procedure, a communication may constitute an abuse of the right of submission when it is submitted five years after the exhaustion of domestic remedies by the author of the communication, or, where applicable, three years after the conclusion of another procedure of international investigation or settlement, unless there are reasons justifying the delay, taking into account all the circumstances of the communication. As a general practice, the Committee assesses compliance with the rule 99 (c) requirements by reference to the point at which domestic remedies have been exhausted. Where domestic remedies have not been exhausted, including in cases where the author claims that such remedies were not available, the Committee may assess the timeliness of the communication by reference to the time of the alleged violation.

In the present case, the Committee notes the author’s allegations of fear of retaliation by the authorities for bringing the complaint to the Committee before the change of regime in the State Party in 2016 as reason for the delay in submission. However, the Committee observes, from information available to it on file, that since 2001 the author carried out, on a continuous and regular basis (sometimes several times a month), numerous civic activities in her capacity as a human rights defender, including investigations, monitoring and protests, and has submitted numerous complaints to the police, prosecutor’s office and courts. In this light, the Committee is not persuaded that the delay was justified. The Committee therefore accepts for consideration the part of communication related to the events starting in June 2013 and declares the claims preceding this date inadmissible under article 3 of the Optional Protocol for excessive delay in submission.

The Committee notes the State party’s argument under article 5 (2) (b) of the Optional Protocol that the author has not exhausted domestic remedies on any of the claims submitted before the Committee. The Committee also notes the author’s claim that she was unable to exhaust domestic remedies given the human rights situation in the State Party, there was no reasonable prospect of success in trying; because she was afraid of retaliation by the State Party if she complained of the alleged violations and because she was deprived of her legal capacity in 2006 and did not have a guardian until 2018.

The Committee recalls its jurisprudence to the effect that authors must avail themselves of all domestic remedies in order to fulfil the requirement of article 5 (2) (b) of the Optional Protocol, insofar as such remedies appear to be effective in the given case and are de facto available to the author. The Committee also recalls that mere doubts about the effectiveness of the remedies, or in this case about the relevance of such remedies, do not absolve an individual from exhausting available domestic remedies.

The Committee notes that the author alleges the futility of domestic remedies based only on the general human rights record in the State Party. The Committee notes that the author does not provide any concrete examples to substantiate inefficiency of the domestic remedies in similar cases. Regarding the author’s allegations of fear of retaliation as a reason for not exhausting domestic remedies, the Committee refers to para. 8.4 above and finds the author’s argument insufficient to justify the non-exhaustion of domestic remedies.

Addressing the author’s claim that the domestic remedies were not available to her since she was deprived of her legal capacity in 2006, the Committee notes that the decision of 24 August 2006, by which the Mirobod District Court declared the author legally incompetent could be appealed within 20 days. The author mentions that she submitted an appeal, however, there are no details and no supporting documentation provided by the author to enable the Committee to verify this claim. The Committee notes that the author was represented by counsel and was not herself in detention at that time. The Committee does not have information as to whether and how the author attempted to restore her legal capacity. In addition, the Committee notes that the author does not address the State Party’s statement that she did have an ipso iure guardian, i.e. the district healthcare organization when she was deprived of her legal capacity and does not clarify whether she knew about this guardianship authority and tried to obtain their support in filing complaints. The Committee also notes that the author did not attempt to exhaust domestic remedies on her claims preceding the 2006 court decision, while she had full legal capacity. In light of the above considerations, the Committee is unable to conclude that the author was exempted from the requirement to exhaust domestic remedies.

The Committee notes that the only claim where the author tried to exhaust domestic remedies and provided supporting documentation concerned her involuntary hospitalization in March 2016, when the author’s mother and lawyer submitted a cassation appeal to the Mirobod District Court. In this case, the Committee observes that the court requested additional documents from the author’s representatives, which have not been submitted before the deadline. The author has not provided in her communication any explanation on why such documents could not have been furnished. The Committee recalls its jurisprudence that authors are bound by procedural rules such as filing deadlines applicable to the exhaustion of domestic remedies, provided that the restrictions are reasonable. In such circumstances, the Committee cannot conclude that the author exercised “requisite diligence” under article 5 (2) (b) of the Optional Protocol.

In view of the above considerations the Committee finds that the author has not exhausted domestic remedies on the claims raised before the Committee and has not sufficiently justified the failure to do so. The Committee therefore finds the author’s claims inadmissible under article 5 (2) (b) of the Covenant.

In view of the above, the Committee considers it unnecessary to examine other grounds of inadmissibility including the State Party’s objection to the author’s representation.

The Committee therefore decides: (a) That the communication is inadmissible under articles 3 and 5 (2) (b) of the Optional Protocol;