Mr. Saimijon and Mrs. Malokhat Bazarov v. Uzbekistan

The authors claim that the above presented facts constitute a violation of their son’s rights under articles 7; 9; 10; 11; 14, read together with article 6; and 15, of the Covenant. Although they do not invoke this provision specifically, the communication also appears to raise issues under article 7 in respect of the authors.

The State party presented further observations on 26 January 2004. It reiterates its previous observations and affirms that the case may be considered groundless on the merits. It contends that the authors’ allegations of violation of article 7 are unsubstantiated. Contrary to what is indicated in the communication, the Supreme Court of Uzbekistan unequivocally states that according to the trial records, neither the alleged victim nor his co-defendants or lawyers, ever requested the presiding judge to appoint a medical commission to investigate allegations of torture or ill-treatment. At the same time, according to the State party, “internal safeguard procedures” of law-enforcement agencies had not revealed any misconduct during pre-trial detention of Mr. Bazarov.

According to the State party, the allegations under article 14 are also unsubstantiated. Contrary to the authors’ allegations, the trial records show that the court trial started on 12 April 1999, in the presence of a prosecutor, defence lawyers, interpreter, all defendants, and victims. The trial is said to have been conducted in a continuous manner, and a prosecutor, lawyers, and defendants were present at all times, and all interrogations were conducted “in the presence of the prosecutor, lawyers, and defendants”.

The State party finally states that according to its competent authorities, Bazarov’s sentence was carried out on 20 July 2000, i.e. prior to the registration of the communication by the Committee and to the formulation of its request for interim measures under rule 92 of its rules of procedure, on 5 December 2000.

The Committee has noted the authors’ allegations that their son’s co-defendants were beaten and tortured during the investigation to the point that they gave false testimony incriminating him and served as a basis for his conviction. The Committee notes that from the material before it, it transpires that the alleged victim and his lawyer have claimed that the co-defendants showed marks of torture in court and affirmed that their testimonies were obtained under torture, in response to which the presiding judge summoned two of the investigators in question, and asked them whether they used unlawful methods of investigation, and dismissed them after receiving a negative reply. The State party merely replied that the alleged victim’s co-defendants or lawyers did not request the court to carry out any medical examination in this regard, and that unspecified “internal safeguard procedures” of the law-enforcement agencies had not revealed any misconduct during the pre-trial detention. In this connexion, the Committee notes that the State party has not adduced any documentary evidence of any inquiry conducted in the context of the court trial or in the context of the present communication. It recalls that the burden of proof (on the use of torture) cannot rest alone on the author of a communication, especially considering that the author and the State party do not always have equal access to the evidence and that frequently the State party alone has access to relevant information; it is implicit in article 4 (2) of the Optional Protocol that the State party has the duty to investigate in good faith all allegations of violation of the Covenant made against it and its authorities. In the circumstances, the Committee considers that due weight must be given to the authors’ allegations, as the State party has failed to refute the allegations that the alleged victim’s co-defendants were tortured to make them give false evidence against him. Accordingly, the Committee concludes that the facts as presented reveal a violation of the alleged victim’s rights under article 14, paragraph 1, of the Covenant.

In light of the above conclusion, and bearing in mind its constant jurisprudence to the effect that that an imposition of a sentence of death rendered in a trial that did not meet the requirements of a fair trial amounts also to a violation of article 6 of the Covenant, the Committee concludes that the alleged victim’s rights under this provision have also been violated.

The Committee has taken note of the authors’ claim that the authorities did not inform them about their son's situation for a long period of time, and learned about his execution a long time after his death. It notes that the State party’s law does not allow, for a family of an individual under sentence of death, to be informed either of the date of execution or of the location of the burial site of an executed prisoner. The Committee understands the continued anguish and mental stress caused to the authors, as the mother and father 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' initial failure to notify the authors of the execution of their son and the failure to inform them of his burial place, amounts to inhuman treatment of the authors, in violation of article 7 of the Covenant.

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. Naymijon Bazarov’s rights under articles 9, paragraph 3, and article 14, paragraph 1, read together with article 6, of the Covenant, and the rights of his parents, Mr. and Mrs. Bazarov, under article 7.

In accordance with article 2, paragraph 3 (a), of the Covenant, the State party is under an obligation to provide the authors of the communication with an effective remedy, including information on the location where their son is buried, and effective reparation for the anguish suffered. 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.]