Nadezhda Agabekova v. Uzbekistan

The author claims that in violation of article 6 of the Covenant, the Tashkent Regional Court imposed her son’s death sentence arbitrarily, notwithstanding that the law provided a prison term as a possible alternative (15 to 20 years’ imprisonment). After his conviction, he was allegedly made to sign a statement that he renounced the right to seek a Presidential pardon. The author claims that her son was tortured and ill-treated by investigators, to force him to confess guilt. Her son requested the trial court to order an investigation and a (medical) examination of the result of the beatings, but the request was rejected. During the preliminary investigation, both her son and the author requested, without result, to have a medical doctor take care of him. This part of the communication appears to raise issues under articles 7 and 10, of the Covenant, even though the author does not invoke these provisions specifically. According to the author, her son’s trial did not meet the requirements of due process. She claims that (a) the presiding judge had determined her son’s guilt before the end of the trial; (b) evidence were not examined in depth, nor objectively; (c) her son’s conviction was based primarily on Annenkov’s testimony, notwithstanding the murder knife was found in Annenkov’s home; (d) the investigators did not reconstruct the crime, interrogated only Annenkov at the scene of the crime, and neither the investigation nor the court established who exactly murdered the victims; (e) the trial court fully accepted the prosecution charges, thus demonstrating that the trial was biased; (f) during the trial, the presiding judge constantly humiliated the two co-accused, interrupted Agabekov and commented on his answers, thus failing in his duty of impartiality. The author argues that her son’s sentence was determined without taking into account information about his personality and circumstances – i.e. that he has a young child and has a good reputation both at home and at work. The court did not take into account the fact that prior to the murder, M. had also committed unlawful acts. Mr. Agabekov’s presumption of innocence was allegedly violated, as he was obliged to prove his innocence, and the court established his guilt on the basis of indirect evidence. Article 463 of the Uzbek Criminal Code stipulates that convictions may only be grounded on evidence upon verification of all possible circumstances of the commission of the crime. The author states that the courts simply ignored doubts in relation to her son’s guilt. According to the author, the trial court wrongly held that the murder had been committed “with particular violence”. The “particular violence” prerequisite relates only to cases where the victim is subjected to torture or humiliation. In her son’s case, according to the author, the victims were not subjected to torture but died instantly. Finally, and without further substantiating the claim, the author affirms that her son is also a victim of violations of his rights under articles 15 and 16 of the Covenant.

The State party presented its observations on 30 May 2002. It recalls that on 18 September 2001, Mr. Annenkov and his co-accused were found guilty and sentenced to death, with a confiscation of property, by the Tashkent Regional Court of having murdered and robbed Mr. M. and his companion S. Under the pretext of borrowing money from their victims, they came to M.’s apartment and there they administered several stabs with a knife to both victims, in a particularly violent manner. The victims died from the injuries and due to blood loss. After having taken 28 000 sums and electric interrupters valued at 4600 sums, they left. Later in the day, they bought six doses of heroin from one K., and after having injected themselves with four, kept the remaining two with them. These were later seized from Annenkov’s apartment.

On 12 November 2001, the Tashkent Regional Court re-qualified the crimes in relation to the murders, but maintained the death sentences. On 23 April 2002, the Supreme Court quashed the sentences of death and commuted them to 20 years’ imprisonment.

The author presented comments on 30 August 2002. She confirms that her son was removed from death row on 10 May 2002. She notes that the State party’s reply does not contain information on investigations undertaken in relation to her son’s torture and ill-treatment by the police officials of the Regional Department of the Ministry of Internal Affairs of Akhangaran City. She recalls that her son sustained severe injuries during the preliminary investigation, and when he complained about it in court and gave the names of those responsible (the Chief of the Criminal Search Department, R.Kh, his subordinates, and an investigator from the Prosecution’s Office, F.) , the court replied that these allegations amounted to a defence strategy.

The author states that her son never confessed guilt, neither during the investigation nor in court, and that he was only a witness at the crime scene, and that there was no direct evidence of his involvement in the murders. Under article 23 of the Uzbek Criminal Code, an accused does not have to prove his innocence. All doubts about guilt must be weighed in favour of the accused. However, according to her, in her son’s case, the court failed to respect these principles.

By letters of 20 September 2004, 16 June 2005 and 18 November 2006, the author was requested to submit supplementary information. No reply was received. On 4 December 2006, the author informed the Committee that her son remains imprisoned in a penitentiary colony in Akhangaran City.

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 it 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, as required by article 5, paragraph 2 (a), of the Optional Protocol, and that the State party has not presented any objection on the issue of non-exhaustion of domestic remedies.

The author invokes a violation of her son’s right under article 6, of the Covenant, since he was sentenced to death without any possibility of an alternative sentence and, later he was made to sign a statement renouncing his right to seek a pardon. The State party has not commented on these allegations. The Committee notes that the author’s son’s death sentence was commuted to 20 years’ imprisonment by the Supreme Court on 23 April 2002. Moreover, and notwithstanding the content of paragraph 2.8 above, the Committee notes, that the author, on 12 April 2002, did file a pardon application with the President's office, and another such application was filed by four of her neighbours on an unspecified date. In the circumstances, and in the absence of any other pertinent information by the parties in this regard, the Committee considers that the author has failed to sufficiently substantiate her claim, for purposes of admissibility. This part of the communication is therefore inadmissible under article 2, of the Optional Protocol.

The Committee notes the author’s allegations under article 14 set out in paragraphs 3.3-3.7 above, that were not refuted by the State party. It observes, however, that these allegations relate primarily to the evaluation of facts and evidence by the courts. It recalls 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. In the absence of other pertinent information that would show that evaluation of evidence indeed suffered from such deficiencies in the present case, as well as in the absence of a copy of any court record, or copies of the complaints filed in this connection or information on the authorities’ reaction to such complaints, the Committee considers this part of the communication to be inadmissible under article 2 of the Optional Protocol.

The Committee considers that the author’s allegation that her son is a victim of violations of articles 15 and 16 is inadmissible under article 2 of the Optional Protocol as it has not been sufficiently substantiated.

The Committee finds the remaining part of the author’s allegations that appear to raise issues under articles 7 and 10 in the light of paragraphs 2.2-2.3, 2.6 and 3.2 above, to be sufficiently substantiated for purposes of admissibility.

The Human Rights Committee has considered the communication in the light of all the information made available to it by the parties, as provided for under article 5, paragraph 1, of the Optional Protocol.

The author claims that her son was tortured and ill-treated by the investigators to make him confess guilt, that he was refused medial care in detention, and that when he complained about torture in court, the presiding judge refused to order an inquiry or request a medical examination. The Committee recalls that once a complaint against maltreatment contrary to article 7 is lodged, a State party is under a duty to investigate it promptly and impartially. In the absence of any information by the State party, in particular in relation to any inquiry made by the authorities both in the context of the author’s son’s criminal case or in the context of the present communication, and in light of the detailed description provided by the author of how her son was ill-treated by investigators, the methods of torture used, and the names of those responsible, due weight must be given to the author’s allegations. In the circumstances of the case, the Committee concludes that the facts as presented disclose a violation of article 7 of the Covenant.

In light of the above conclusion, the Committee does not consider it necessary to examine the author’s claim under article 10.

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 the author’s son’s rights under article 7 of the Covenant.

In accordance with article 2, paragraph 3 (a), of the Covenant, the State party is under an obligation to provide Mr. Agabekov with an effective remedy, including compensation. 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.]