Leonid Komarovski v. Turkmenistan

The author did not provide comments to the State party’s observations.

Before considering any claim contained in a communication, the Human Rights Committee must, in accordance with rule 93 of its rule of procedure, decide whether or not the communication is admissible under the Optional Protocol to the Covenant.

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

The Committee notes that the State party does not challenge admissibility, nor provide information on available and effective remedies. In the absence of any apparent obstacle to admissibility the Committee concludes that the claims are sufficiently substantiated and the communication is admissible insofar as it raises issues with respect to articles 7; 9, paragraphs 1 to 4; 10, paragraphs 1 and 2(a); and 17, paragraph 1, of the Covenant.

The Human Rights Committee has considered the present communication in the light of all the information available to it, as provided in article 5, paragraph 1, of the Optional Protocol. It notes that the State party has not addressed in detail the author’s allegations. In the circumstances, due weight must be given to such allegations to the extent that they have been sufficiently substantiated.

With respect to the author’s allegation that he was subjected to arbitrary arrest or detention in violation of article 9, paragraph 1 of the Covenant, the Committee recalls that deprivation of liberty is permissible only when occurring on such grounds and in accordance with such procedures as are established by law. In this case, the fact that the author was arrested by officers belonging to the General Prosecutor’s Office who reportedly did not have the power to arrest individuals under the State party’ legislation and held incommunicado for at least 7 days makes his detention arbitrary. The Committee thus concludes, in the absence of any challenge to this claim by the State party, that the circumstances in which the author was deprived of his liberty violate the prohibition of arbitrary arrest and detention in article 9, paragraph 1, of the Covenant.

As to the claim related to article 9, paragraph 2, the Committee notes that at the time of his arrest, the author was apparently not informed of the reasons for his arrest and the charges against him, which were presented to him only during the third day of detention. Again, in the absence of relevant State party’s information on this claim the Committee considers that the facts as presented constitute a violation of article 9, paragraph 2, of the Covenant.

With regard to the possible violation of article 9, paragraphs 3 and 4, of the Covenant, the Committee notes that the author was not brought before a judge or any other officer authorized by law to exercise judicial power for the entire duration of his detention, i.e. almost five months. The Committee reiterates that the length of custody without judicial authorization should not exceed a few days. It also notes that the author, despite having been assigned an ex officio lawyer, was prevented from taking proceedings before a court to assess the lawfulness of his detention. The Committee considers that in the circumstances, and in the absence of any explanation from the State party, these facts amount to a violation of article 9, paragraphs 3 and 4 of the Covenant.

As to the claims related to the conditions of detention in the MNB inner jail, described by the author in detail (see paragraph 3.5 supra), the Committee concludes that he was treated inhumanely and without respect for his inherent dignity, in violation of article 10, paragraph 1, of the Covenant. Equally, and in the absence of information from the State party, the Committee concludes that article 10, paragraph 2 (a), was violated, since the author was detained on two occasions together with convicted persons, without any indication of exceptional circumstances justifying such detention.

As to the alleged violation of article 7 of the Covenant, the Committee notes the State party’s general statement that no acts of torture were used against the author in the course of the investigation. However, the author’s specific allegations that he was subjected to severe beatings and intimidation with the purpose of coercing him to confess, and that he was administered unidentified substances against his free will for the same purposes, have not been rebutted by the State party. Accordingly, the Committee concludes that these facts, as reported by the author, constitute a violation of article 7.

Finally, the publication of a book confirming the official version of the events of 25 November 2002 which falsely portrays the author as the writer of the book, constitutes, in the absence of relevant information from the State party, an unlawful interference with the author’s privacy and an unlawful attack against his honour and reputation, in violation of article 17, paragraph 1, 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 reveal a violation by the State party of article 7; article 9; paragraphs (1), (2), (3), and (4); article 10, paragraphs (1) and (2) (a); and article 17 (1) of the Covenant.

In accordance with article 2, paragraph 3 (a), of the Covenant, the State party is under an obligation to provide the author with an effective remedy and, to that effect, take appropriate steps to: (a) institute criminal proceedings for the prosecution and punishment of the persons responsible for the violations to which the author was subjected; (b) provide the author with appropriate reparation, including compensation; and (c) make a public retraction of the imputed authorship of the book referred to above. The State party is also under an obligation to take measures to prevent similar violations in the future.

By becoming a party to the 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. In this respect, the Committee wishes to receive from the State party, within 180 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.]