Y.S. v. Turkmenistan

The communication is submitted by Y.S., a national of Turkmenistan and the Russian Federation, born in 1973. The author claims to be a victim of a violation by the State party of her rights under articles 1, 2, 5, 13, 15 and 24 of the Convention. The State party acceded to the Optional Protocol to the Convention on 20 May 2009. The author is represented by her sister, D.S.

The author was a co-founder and director of the Akhal Yurt company, which bred and trained purebred Akhal-Teke horses, considered a national treasure of Turkmenistan and among the finest in the world. She and her spouse ran and owned the company at 50 per cent each. The present facts are part of a longer history of discrimination against the family, after her spouse, who was Minister of Horse Breeding, fell out of favour with the authorities and was sentenced to six years of imprisonment for negligence and abuse of office.¹ The author assumed sole responsibility for the company following his imprisonment in 2002. In 2005, she was banned from leaving the country.

1. In addition, the author’s husband was served a travel ban and was told not to approach the horses for the rest of his life and not to talk about them. Furthermore, he was not permitted to work in Turkmenistan. ↩

On 26 June 2006, the Governor of Ashgabat cancelled the resolution that had permitted the construction of the company’s stables and authorized their demolition, without offering alternative land or stables. The author found new stables in the village of Ak-Bugday. On 28 March 2007, she signed a 25-year lease agreement with the Dayhan Association Vatan of the Ak-Bugday etrap, Akhal Velayat, a public body empowered to enter into leases of public land. The lease, which stipulated that no rent would be charged for the first three years, was approved by the Council of said Association. An inspection of the company’s book and activities in 2009 by the Tax Inspectorate found no irregularities.

However, on 10 March 2010, a delegation of 26 officials (all men) from various State organs, including the Ministry of National Security and the Office of the Prosecutor General, came to the stables and told the author, without any substantiation, that she was illegally occupying the building.² On the evening of that same day, the author and her spouse were summoned to the Office of the Prosecutor General of Turkmenistan. They were interrogated separately. One prosecutor told her spouse that if he were prepared to divorce her, then he would be allowed to re-register the company exclusively in his own name. He was threatened with imprisonment and rape if he and the author did not comply. The prosecutor also told him, “If you divorce that Jewish woman, we will give you 10 horses. Why did you marry her? Was a Turkmen woman not good enough for you?” He made clear that he believed that a woman, especially a Jewish woman, had no right to run a company or to breed purebred Akhal-Teke horses and said that “the President of the State is very angry about your wife, because she is the director of a company dealing with pure Akhal-Teke horses. It is impossible for the Turkmen people to accept this. It must be stopped”.

2. The author notes that there is no official record of the visit, but that she has a video record of it available. ↩

During the author’s interrogation, two prosecutors threatened her with sexual violence if she did not give up her role. One of them said, “If you don’t agree to sign the papers stating that you agreed to give all horses to the State, you will have big troubles”. Another said, among other abuse, “You see there are six of us. Each of us will rape you. Your husband is in the other room, and he will also be raped and killed. Your husband is 59 and he won’t survive in prison”. The prosecutors sought to coerce her into signing a document for the transfer of the ownership of her horses to the authorities. She was instructed to sign the papers by the following morning because the President of the State party had told the Prosecutor General to report to him that the horses were no longer her property. She was also told that a criminal case for illegal land squatting would be commenced against her if she did not comply. The Prosecutor General told her: “This is not our idea. The President does not like it that a Jewish woman who does not speak Turkmen owns one of the best champions of the world. Before 5.30 a.m. you must sign a transfer. After this period, there will be no return.”

The author and her spouse decided to comply and signed the documents. She was warned that filing a complaint would lead to her immediate arrest and the reinstitution of a criminal case against her.³ That case had been previously withdrawn when she “agreed” to transfer her interest in the horses to the authorities, purportedly after having confessed guilt. The authorities thus took the horses, claiming that they were to cover expenses equivalent to $139,398.51 allegedly owed for rent, water and electricity charges and the equivalent of $5,475.23 for the use of the Turkmen State Hippodrome. According to the author, those sums are trivial compared with the market value of the horses, which was many tens of millions of dollars. However, their book value was used instead, resulting in a lower valuation “by many orders of magnitude”.⁴

3. A previous criminal case against the author involved allegations that she had violated articles 33 (4) (instigation to commit a crime), 181 (2) (abuse of power) and 317 (spoilage of land) of the Criminal Code of Turkmenistan. ↩
4. The author refers to an “expert opinion” by her husband, who sets out that the total value of the 87 horses, including the horse depicted on the country’s national flag, expropriated from them is $6,771,540,000, plus $75,346,000 for the appropriation of their structures in Ak-Bugday. ↩

The prosecutors had also impugned the author’s actions in another criminal case, brought in 2010 against I.B., the Chair of the Dayhan Association Vatan, when it approved the lease of the farm to the author’s company. The indictment of 31 March 2010 alleged that her company had failed to pay for the use of water and electricity at the premises, even though the Turkmen Constitution guarantees water and electricity free of charge. Despite the threats, the indictment stated that she and her spouse had freely agreed to give all horses to the authorities. Representatives from the Ministry of Finance and Economy considered that the company was liable to pay rent for the first three years despite the lease agreement saying otherwise and was liable for the equivalent of $770 for water and electricity. The indictment claimed that the losses resulted from the actions of I.B., but that they could be recovered from the company’s property.

The author asserts that the transfer of the horses was involuntary, and that the expropriation was unlawful, in part because of discriminatory attitudes that as a woman (of Jewish background) she should not serve as company director and should not play a leading role in breeding prestigious Akhal-Teke horses. She was thus deprived of her means of existence and significant assets resulting from considerable time and financial investments. She continues to struggle financially. In addition, she and her family and friends were subjected to harassment and threats of reprisals. The authorities subjected the author, her sister E., her daughter and her husband to travel restrictions.⁵ Friends who visited them were also monitored, harassed and threatened.⁶ Following the lifting of travel restrictions, the author and her family moved to the Russian Federation in 2015 and to Czechia in April 2016, where they were granted refugee status.

5. The author submitted a copy of a decision restricting her travel. ↩
6. The author submitted a copy of a declaration by a friend of hers to this effect. ↩

The author claims that there were no domestic remedies available to her in practice that would have provided effective relief. She argues that the remedies theoretically available for the threats of sexual violence, the travel restrictions and the harassment were illusory, given that the expropriations were orchestrated by officials in multiple ministries and were ordered or at least had the support of the President of the State party. The threats of sexual violence and of retaliatory criminal proceedings were made by high-level prosecutors, including the Prosecutor General. The author argues that this demonstrates the absence of any prospect in terms of criminal, civil or administrative complaints. She adds that the recognition of her refugee status underscores the ineffectiveness of remedies in Turkmenistan for her.⁷ She also refers to the general situation of human rights in Turkmenistan, which, she claims, clarifies that the treatment of her and her family is consistent with systematic human rights violations, the lack of independent courts and impunity for government officials.⁸

7. The author refers to Human Rights Committee, Avadanov v. Azerbaijan (CCPR/C/100/D/1633/ 2007), para. 6.4: “The Committee concluded that … it could not be held against the author that he had not raised [his] allegations before the State party authorities or courts for fear that this might result in his victimisation and the victimisation of his family. The Committee also considered relevant in this regard that the author had been successful in obtaining refugee status in a third state. Therefore, the Committee accepted the author’s argument that, for him, domestic remedies in Azerbaijan were ineffective and unavailable”. ↩
8. The author refers to a substantial number of reports and jurisprudence that support this conclusion, as well as concluding observations of the Human Rights Committee and the Committee against Torture. See, for example, compilation on Turkmenistan, report of the Office of the United Nations High Commissioner for Human Rights (A/HRC/WG.6/30/TKM/2); concluding observations on Turkmenistan of the Committee Against Torture (CAT/C/TKM/CO/1, para. 10, and CAT/C/TKM/CO/2, paras. 22 and 23); concluding observations on Turkmenistan of the Human Rights Committee (CCPR/C/TKM/CO/1, para. 13, and CCPR/C/TKM/CO/2, paras. 30 and 31); and concluding observations on the eighth to eleventh periodic reports of Turkmenistan of the Committee on the Elimination of Racial Discrimination (CERD/C/TKM/CO/8-11, para. 23). ↩

The author claims that the unlawful expropriation without compensation of her property based on her sex and ethnicity, the threats of sexual violence against her and the subsequent harassment of her and her family constitute violations of articles 2, 5, 13 and 24 of the Convention, read in conjunction with general recommendation No. 35 (2017) on gender-based violence against women, updating general recommendation No. 19. She argues that her property interests in the company and the horses were a human right and fundamental freedom within the meaning of article 1 of the Convention. The actions of the Turkmen public officials deprived her of her rights and freedoms on the basis of equality of men and women. She argues that the expropriation infringed on her right to property and right to work, which are protected by the Convention. In this regard, the author states that, in its case law and concluding observations, the Committee has recognized that the deprivation of an interest in property on a discriminatory basis – in the present case a combination of sex and ethnicity – constitutes a violation of the Convention.⁹ The author argues that the actions involved stereotypes based on sex and the traditional roles assigned to women and men, particularly the belief that it is not appropriate for a woman to be the chief executive of a company breeding Akhal-Teke horses. Moreover, the threats of sexual violence against her constituted gender-based violence against a woman. The State officials’ action to deprive the author of her property interests was significantly motivated also by the author’s non-Turkmen, Jewish background, which also falls within the scope of the Convention, as intersectional discrimination based on sex and ethnicity.¹⁰ Equally, to the extent that the discriminatory actions against her were motivated in part by discrimination against her husband, on the basis of his political opinion and activities, this would also involve intersectional discrimination on the basis of sex and marital status, as well as ethnicity and religion.

9. Kell v. Canada (CEDAW/C/51/D/19/2008), paras. 10.2–10.4; and concluding observations on the combined second to fifth periodic reports of Zimbabwe (CEDAW/C/ZWE/CO/2-5), paras. 35 and 36. ↩
10. The author refers to the Committee’s observations on discrimination against non-Turkmen women (CEDAW/C/TKM/CO/5, paras. 46 and 47). ↩

The author submits that she is the victim of a violation of article 2 of the Convention, particularly under subparagraph (d) and also under subparagraphs (b) and (c). She submits that the expropriation based on the view that it was inappropriate for a woman to own and train Akhal-Teke horses reflects gender stereotypes amounting to a violation of article 5 (a) of the Convention.

Furthermore, the author argues that article 13 of the Convention extends to the right of women to engage in economic activity, such as running a business. She had significant professional and financial interests in the company as its co-owner and the person responsible for running it. The business was ended by the losses inflicted through expropriations, which is a violation of article 13 of the Convention.

The author claims that the threats of sexual violence against her, made by State officials, in a situation where she was physically vulnerable and subject to the power of several male officials, constitute a direct violation of her rights under article 2 (c) of the Convention, while the failure to investigate and sanction these threats constitutes a further violation of her rights under article 2 (b)–(d) of the Convention. The prosecutors’ warning not to seek a legal remedy constituted a continuation of the discrimination against her, as well as a reprisal and an additional failure to establish legal protection under article 2 (c) of the Convention and the right to be free from discrimination in access to courts and the right to a fair hearing under articles 1 and 15 of the Convention.

The author requests compensation for moral damages in the amount of $20,000. Furthermore, as restitution of her property is not reasonably available, she requests monetary compensation for the economic losses based on the market value and the loss of profit that reasonably could have been made since the confiscation. Based on a calculation by her husband,¹¹ she submits that the loss suffered from the value of the horses amounts to $6,771,540,000. Combined with the loss of the money invested in the properties and the use of the horses since 2010, the author submits that the total loss amounts to $7,525,000,000.¹² She also requests the Committee to reiterate its call¹³ for a comprehensive policy and to take steps to prohibit and eliminate stereotyping and discrimination based on sex, gender and ethnicity, to raise awareness and to monitor stereotyping.

11. The author submitted a copy. ↩
12. The author states that she is aware that these valuations may appear extremely high and offers to provide additional information in this regard. ↩
13. The author refers to the Committee’s concluding observations on the fifth periodic report of Turkmenistan (CEDAW/C/TKM/CO/5). ↩

The author argues that the passage of time since the violations occurred does not form an obstacle to the admissibility of her case. She notes that the process of the expropriations and harassment and the family’s eventual departure from Turkmenistan took a number of years, including because of travel restrictions. Moreover, their social and economic re-establishment in Czechia meant that they could not initially find the expert assistance and time required to prepare a communication properly. Furthermore, it took her and her sister a significant amount of time to obtain access to pro bono legal assistance and to arrange the translation of documents in English, Turkmen, Russian and Czech. In addition, neither the Optional Protocol to the Convention nor the rules of procedure of the Committee pose a legal time limit.¹⁴

14. The author refers to M.S. v. Philippines (CEDAW/C/58/D/30/2011). ↩

On 28 December 2021 and 15 June 2022, the State party submitted its observations regarding the author’s communication. The State party points out that D.S. applied to the Committee on behalf of Y.S., claiming that her rights under articles 1, 2, 5, 13 and 15 of the Convention had allegedly been violated. Due to the fact that this communication was not the subject of domestic judicial review, verification of the facts stated in the communication is not within the competence of the courts of Turkmenistan.

The State party describes the factual circumstances surrounding the case concerning the author’s spouse, G.K. In this regard, the State party indicates that, by the verdict of the Judicial Collegium for Criminal Cases of the Ashgabat City Court dated 4 April 2002, G.K. was found guilty of committing crimes under articles 181 (1) and (2) and 188 (1) of the Criminal Code of Turkmenistan. The court sentenced him to six years in prison with deprivation of the right to occupy financially responsible positions for a period of three years. The court also decided to recover 4,894,856 manats from G.K. as compensation for damage to the State.

The court also ruled to transfer money in the amount of $4,000 and 75,000,000 manats from the settlement account of the International Association of Akhal-Teke Horse Breeding to the settlement account of the Akhal-Teke horse breeding plant under the name of S.A. Niyazov, to cancel the arrest imposed on the property of Akhal Yurt, and to return the property according to ownership.

The State party further informs the Committee that, according to the receipt of the wife of G.K., the author Y.S., dated 20 August 2002, the property belonging to Akhal Yurt, as well as, according to the receipt order number 64 dated 14 January 2003, the amount of 53,000,000 manats, was fully returned. The State party concludes that the consideration of the arguments set forth in the submission is not within the competence of the courts.

On 10 February 2023, the author provided her comments on the observations of the State party. The author recalls that her complaint is related to her discriminatory treatment by State party officials, in particular a series of acts that took place in 2010 and which have had continuing consequences. The author reiterates her claims that the State party has violated her rights under the Convention by: (a) discriminating against her on the basis of gender and ethnicity in her ownership and training of horses, including by effectively expropriating those horses in 2010 without compensation; and (b) discriminating against her on the ground of her sex in the use by State officials of threats of sexual violence against her in order to persuade her to transfer ownership of the horses to the State.

The author notes that, in its observations, the State party raises no issues in relation to the admissibility of the communication and does not respond to the specific allegations of fact and law contained in the original communication, which formed the basis of the claims of violations of the Convention. The State party response refers to an earlier incident in 2002, not the events that took place in 2010.

The author agrees with the description of the 2002 episode as presented by the State party; indeed, the author referred to it briefly in the original communication (see para. 2.1). The author considers, however, that it may be helpful to the Committee to provide further clarification of this earlier episode. The State party’s response refers to an episode that took place in 2002 at the time when the author’s husband, G.K., was Minister of Horses in Turkmenistan and had fallen out of favour with the ruling authorities. For various reasons, a criminal case was brought forth against the author’s husband on charges of large-scale embezzlement, for which the maximum term of imprisonment upon conviction would be 25 years, as well as on lesser charges of negligence and abuse of power. The author’s husband was accused of stealing horses and State property, including spoons, knives, forks, cups, flags and electronic scales valued at 53,000,000 manats (approximately $10,000).¹⁵ The horses that he was accused of stealing were confiscated by the State party pending the decision of the court, and the author deposited the sum of 53,000,000 manats with the State before the trial on behalf of her husband, as the Head of the Department of the Central Office of the National Security Committee, A.A., had ordered her to deposit the money pending the court’s decision.

15. The value of this property was at that time about $10,095, calculated on the basis of a rate of 5,250 (old) Turkmen manats to the United States dollar (see www.govinfo.gov/content/pkg/ GOVPUB-T63_100-fab63240b6208a926bd391a4d87ad4e2/pdf/GOVPUB-T63_100-fab63240b6208a926bd391a4d87ad4e2.pdf). ↩

At the trial it was proved that: (a) the horses had not been stolen and they in fact belonged to the author’s husband; and (b) the State property that he had been accused of stealing had not in fact been stolen but was in a warehouse owned by the relevant Ministry. The author’s husband was acquitted of the charges of large-scale embezzlement and stealing horses; however, he was convicted of negligence and abuse of power and sentenced to six years of imprisonment on those charges.

At that time, the sole owner of the horses was the author’s husband, who was the head of the individual enterprise/firm Akhal Yurt. Following the conclusion of the criminal proceedings against him, the horses were returned, and they were received by the author, acting as proxy on behalf of her husband, given that he was in prison. The State party also returned the sum of 53,000,000 manats. The response of the State party confirms the return of the property and repayment of the money.

Following the conclusion of the trial, in 2002, the Akhal Yurt company was dissolved and a new company, the Akhal Yurt Enterprise, was established in the same year. With the establishment of the new firm, the author became co-owner of the horses with her husband.

These events took place in 2002, some years before the actions complained of in the communication (2006 onward and, in particular, in 2010 and the following years). However, they do provide relevant background to the discriminatory attitudes and behaviour displayed by the State party’s officials towards the author and her family over a sustained period of time.

The State party’s response provides further details about an incident involving the husband of the author that took place in 2002, well before the actions described in the complaint. The State party’s observations appear to be based solely on a response from the court which heard the criminal proceedings against the author’s husband in 2002 to which it presumably referred some or all of the communication. As noted above, this incident and these proceedings were not directly relevant to the alleged violations in 2010.

The author states that the State party does not contest any of the specific allegations made by her in relation to the conduct of the State party in 2010, which in the author’s submission constituted violations of the Convention by the State party.

Furthermore, there is no indication that the State party has sought to investigate the allegations contained in the complaint relating to events in 2010. So far as the other allegations are concerned, the State party responded: “Due to the fact that this report [the communication] was not the subject of judicial review, verification of the facts stated in the report is not within the competence of the courts of Turkmenistan”.

Under the Optional Protocol to the Convention and under the Convention itself, a State party has an obligation to investigate complaints of violations of the rights set forth in the Convention and to take appropriate steps to provide reparation in cases of violation. In this case it is not sufficient to seek clarification from a court in relation to the details of a case that took place well before the relevant acts; the State party is required to undertake a credible and independent investigation of the allegations made against State officials. That obligation also applies even where no case has been brought before the courts.

The State party has provided no evidence that it has undertaken such an investigation. In her original communication, the author set out and extensively documented the relevant events of 2010 and subsequently which involved violations of the Convention: these factual allegations were supported by documentary and formally attested affidavit evidence. The State party has contested neither the substance of those allegations nor the legal analysis in the communication arguing that the State party had violated several articles of the Convention.

The author therefore submits that the factual material which she has submitted has more than sufficiently substantiated the factual claims she has made and that these show clear violations of the Convention. The State party has offered nothing by way of relevant factual material or legal analysis that contests any aspect of the author’s case.

The State party has failed to provide any substantive response to the factual material put before the Committee or to the legal analysis contained in the communication. Accordingly, the author respectfully reiterates the request made in paragraphs 116 and 117 of the original communication.

The author requests the Committee to find that she has been the victim of a number of violations of the Convention and has suffered moral and material damage as a result. She requests the Committee, in particular: (a) to find that she has been the victim of violations of rights guaranteed to her by the Convention, in particular her right to be free from threats of gender-based violence and harassment and treatment by the authorities based on gendered stereotypes, including the threat of retaliatory criminal proceedings if she challenged the actions of the authorities (articles 1, 2, 5 and 15 of the Convention); (b) to find that her rights to possess and enjoy property without discrimination (articles 1 and 2 of the Convention) have been violated directly and indirectly through the discriminatory actions in depriving her of her property interests in Akhal-Teke horses and the benefit of the investments made in the equestrian centre where they were kept; (c) to find that her rights to engage in work and in economic activities without discrimination (articles 1 and 13 of the Convention) have been violated; and (d) to find that her rights to equality before the law and right to equal access to the courts for the determination of her rights (articles1, 2 and 15 of the Convention) have been violated.

The author requests the Committee to declare that the State party is obliged to provide her with reparation for the violations of her rights under the Convention and, in particular: (a) to provide compensation in the amount of $20,000 for the moral injury that she suffered in connection with the threats of sexual violence and harassment and the threatened institution of retaliatory court proceedings against her; and (b) to provide her with full compensation for the loss of the full commercial value of the horses that the State party confiscated and the resulting loss of profits, and the value of the improvements made to the horse farm, adjusted for inflation and interest since 2010 (a total base sum before adjustments of $7,525,000,000).

The author also requests the Committee to reiterate the call in its concluding observations on the fifth periodic report of the State party for Turkmenistan¹⁶ to adopt a comprehensive policy and take concrete steps to prohibit and eliminate stereotyping and discrimination based on sex, gender and ethnicity, to conduct awareness-raising of the harmful effects of stereotyping and to monitor the existence of stereotyping.

16. CEDAW/C/TKM/CO/5. ↩

In accordance with rule 64 of its rules of procedure, the Committee must decide whether the communication is admissible under the Optional Protocol. In accordance with rule 72 (4), it is to do so before considering the merits of the communication.

In accordance with article 4 (2) (a) of the Optional Protocol, the Committee is satisfied that the same matter has not been and is not being examined under another procedure of international investigation or settlement.

In accordance with article 4 (1) of the Optional Protocol, the Committee shall not consider a communication unless it has ascertained that all available domestic remedies have been exhausted, unless the application of such remedies is unreasonably prolonged or unlikely to bring effective relief. The Committee notes that, in essence, the State party has argued that the author’s allegations have never been raised in the domestic courts, which renders the communication inadmissible for failure to exhaust all available domestic remedies. The Committee notes the author’s claim that domestic remedies in Turkmenistan were ineffective and unavailable to her. The author asserted that the remedies theoretically available (for threats of sexual violence, travel restrictions and harassment) were illusory, given that the expropriations were orchestrated by government officials and allegedly were ordered or at least had the support of the President of the State party. The Committee also notes the author’s claim that threats of sexual violence and of retaliatory criminal proceedings were made against her by high-level prosecutors in the State party, including the Prosecutor General, which demonstrates the absence of any prospect in terms of criminal, civil or administrative complaints.

The Committee recalls its jurisprudence according to which authors must have raised in substance at the domestic level the claim that they wish to bring before the Committee so as to enable domestic authorities and/or courts to have an opportunity to deal with such a claim.¹⁷ The Committee further recalls that “mere doubts about the effectiveness of the remedies do not absolve authors from exhausting domestic remedies”.¹⁸ In the present case, the Committee observes that the author conceded that she had never raised her allegations before the State party authorities, either before or after her and her family’s departure from Turkmenistan, and despite the significant lapse of time between the events at stake, the establishment of the author in a third country as a refugee and the submission of the present communications before the Committee. In the light of the foregoing, the Committee considers that the author has not exhausted the available domestic remedies and that the communication is inadmissible under article 4 (1) of the Optional Protocol.

17. See, inter alia, Zheng v. Netherlands (CEDAW/C/42/D/15/2007), para. 7.3. ↩
18. See ibid. and J.D. et al. v. Czech Republic (CEDAW/C/73/D/102/2016), para. 8.3. ↩

The Committee therefore decides that: (a) The communication is inadmissible under article 4 (1) of the Optional Protocol;