Davlatbibi Shukurova v. Tajikistan

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.

The Committee notes that the same matter is not being examined under any other international procedure, in line with the requirements of article 5, paragraph 2 (a), of the Optional Protocol. The Committee has noted the author’s claim under article 14, paragraph 3 (e), that several witnesses for Dovud Nazriev were not examined in court. The State party has contended that this allegation was duly examined during the preliminary investigation and was found to be groundless, and that the court dismissed Dovud’s defence alibi as neither he nor his lawyer had provided any documents that would corroborate this alibi. The Committee notes that the above claim relates to the evaluation of facts and evidence. It 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 it was clearly arbitrary or amounted to a denial of justice. On the information before it, the Committee considers that the author has failed to substantiate sufficiently that her husband and his brother’s trial in the case suffered from such defects. Accordingly, this claim is inadmissible under article 2 of the Optional Protocol. The Committee takes note of the author’s allegation under article 14, paragraph 3 (f), as one judge did not sufficiently master the Tajik language. The State party has explained that the judge in question did adequately master the language, and that neither the alleged victims nor their lawyers ever raised the issue in court; this affirmation is unchallenged by the author. In the circumstances, the Committee considers that the author did not exhaust available domestic remedies, and this part of the communication is inadmissible under article 5, paragraph 2 (b), of the Optional Protocol. The Committee has also noted the un-refuted claim that Dovud and Sherali Nazriev’s rights under article 14, paragraph 5, of the Covenant were violated. It recalls that appeal on cassation was examined on 13 November 2001 by the Criminal Chamber of the Supreme Court, acting as an appellate body of the Military Chamber, and that the composition of the appellate body was different from the initial composition of the Military Chamber. In the absence of other information in this respect, the Committee considers that the author has failed to substantiate sufficiently this claim, for purposes of admissibility. This part of the communication is thus inadmissible under article 2 of the Optional Protocol. The Committee considers that the author’s remaining claims are sufficiently substantiated, for purposes of admissibility.

The author claims that her husband and his brother were beaten and subjected to torture by investigators during the early stages of their detention, thus forcing them to confess guilt in the bombing; she provides details on the methods of torture used (paras 2.3 and 2.4 above). She contends that these allegations were raised in court but were ignored. The State party merely argues that the case file does not contain complaints about mistreatment. The Committee observes that the decision of the Supreme Court’s Appellate Chamber also does not address the issue. In the absence of other pertinent information in this regard, due weight must be given to the author’s claims. The Committee recalls that it is essential that complaints about torture must be investigated promptly and impartially by competent authorities. In the present case, no substantive refutation was made by the State party in this regard, and the Committee concludes that the treatment Dovud and Sherali Nazriev were subjected to amounts to a violation of article 7, read together with articles 14, paragraph 1 and 2, paragraph 3, of the Covenant.

In light of the above, the Committee concludes that Dovud and Sherali Nazriev’s right under article 14, paragraph 3 (g), was also violated, as they were compelled to confess guilt to a crime.

The author contends that her husband was arrested on 25 April 2000 and kept in premises of the Ministry of Security until 28 May, without contact with the outside world; his arrest was endorsed by a prosecutor only on 29 May 2000, i.e. 34 days after arrest. The State party notes that an arrest warrant against Dovud was issued on 25 May 2000 and that he was indicted on 29 May 2000. In its reply, the State party has in fact not refuted the claim of unlawful detention of Dovud Nazriev for 34 days. In the circumstances of the case, the Committee concludes that Dovud Nazriev’s right under article 9, paragraph 1, was violated.

On the claim that Dovud and Sherali Nazriev were unrepresented for a long period, and that once they were legally represented, their lawyers were prevented from meeting with them, the State party affirms that when Dovud was indicted on 29 May 2000, he waived his right to be represented; when he was charged with serious crimes, he was given an ex-officio lawyer; Sherali did not request to be represented upon arrest, but was assigned a lawyer on 19 March 2000, when charged with serious crimes. The Committee recalls that, particularly in cases involving capital punishment, it is axiomatic that the accused is effectively assisted by a lawyer at all stages of the proceedings. It concludes that in the circumstances of the present case, the material before it reveals a violation of the author’s husband’s and his brother’s rights under article 14, paragraph 3 (b), and (d), of the Covenant, in that they were not provided with the opportunity adequately to prepare their defence, and were not legally represented at the initial stage of the investigation.

The Committee recalls 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 death sentences were passed and executed, in violation of the right to a fair trial, as guaranteed by article 14 of the Covenant, and therefore also in violation of article 6 of the Covenant.

The Committee finally notes the author’s claim that the authorities did not inform her about her husband’s and his brother’s execution until 23 July 2002. The law in force in the State party still does not allow for the family of an individual under sentence of death to be informed either of the date of execution or the location of the burial site of the executed individual. The Committee understands the continued anguish and mental stress caused to the author, as the wife of a condemned prisoner, by the persisting uncertainty of the circumstances that led to his execution, as well as the location of his gravesite. It recalls that the secrecy surrounding the date of execution, and the place of burial, as well as the refusal to hand over the body for burial, have the effect of intimidating or punishing families by intentionally leaving them in a state of uncertainty and mental distress. The Committee considers that the authorities’ failure to notify the author of the execution of her husband and of her brother in law, and the failure to inform her of their burial places, amounts to inhuman treatment of the author, contrary to article 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 6; 7; 9, paragraph 1; and 14, paragraphs 1 and 3 (b), (d), and (g) , of the Covenant in relation to Dovud and Sherali Nazriev, and of article 7 in relation to the author herself.

In accordance with article 2, paragraph 3 (a), of the Covenant, the State party is under an obligation to provide Mrs. Shukurova with an effective remedy, including appropriate compensation, and to disclose to her the burial site of her husband and her husband’s brother. The State party is also under an obligation to prevent similar violations in the future.

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. [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.]