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A/HRC/WGAD/2016/53

Opinion no. 53/2016 concerning Laçin Akhmadjanov (Afghanistan and United States of America)

UNO-Arbeitsgruppe über willkürliche Inhaftierung (WGAD) · 2016-11-25 · en UN

Opinion; Subjects: AFGHANISTAN, UNITED STATES, ARBITRARY DETENTION; [WGAD: UNO-Arbeitsgruppe über willkürliche Inhaftierung, willkürliche Haft; Groupe de travail sur la détention arbitraire; Gruppo di lavoro sulla detenzione arbitraria]

Volltext (verifizierbarer Originaltext)

GE.17-00571(E)



Human Rights Council

Working Group on Arbitrary Detention

Opinions adopted by the Working Group on

Arbitrary Detention at its seventy-seventh session,

21-25 November 2016

Opinion No. 53/2016 concerning Laçin Akhmadjanov (Afghanistan and

United States of America)

1.

The Working Group on Arbitrary Detention was established in resolution 1991/42 of

the Commission on Human Rights, which extended and clarified the Working Group’s

mandate in its resolution 1997/50. Pursuant to General Assembly resolution 60/251 and

Human Rights Council decision 1/102, the Council assumed the mandate of the

Commission. The mandate of the Working Group was most recently extended for a three-

year period in Council resolution 33/30 of 30 September 2016.

2.

In accordance with its methods of work (A/HRC/30/69), on 20 June 2016 the

Working Group transmitted a communication to the Governments of Afghanistan and the

United States of America concerning Laçin (also known as Musa) Akhmadjanov. The

Government of Afghanistan has not replied to the communication, while the Government of

the United States replied on 13 September 2016. Both Afghanistan and the United States

are parties to the International Covenant on Civil and Political Rights.

3.

The Working Group regards deprivation of liberty as arbitrary in the following

cases:

(a)

When it is clearly impossible to invoke any legal basis justifying the

deprivation of liberty (as when a person is kept in detention after the completion of his or

her sentence or despite an amnesty law applicable to him or her) (category I);

(b)

When the deprivation of liberty results from the exercise of the rights or

freedoms guaranteed by articles 7, 13, 14, 18, 19, 20 and 21 of the Universal Declaration of

Human Rights and, insofar as States parties are concerned, by articles 12, 18, 19, 21, 22,

25, 26 and 27 of the Covenant (category II);

(c)

When the total or partial non-observance of the international norms relating

to the right to a fair trial, established in the Universal Declaration of Human Rights and in

the relevant international instruments accepted by the States concerned, is of such gravity

as to give the deprivation of liberty an arbitrary character (category III);

United Nations

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General Assembly

Distr.: General

13 January 2017

Original: English

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(d)

When asylum seekers, immigrants or refugees are subjected to prolonged

administrative custody without the possibility of administrative or judicial review or

remedy (category IV);

(e)

When the deprivation of liberty constitutes a violation of international law on

the grounds of discrimination based on birth, national, ethnic or social origin, language,

religion, economic condition, political or other opinion, gender, sexual orientation,

disability, or any other status, that aims towards or can result in ignoring the equality of

human beings (category V).

Submissions

Communication from the source

4.

Mr. Akhmadjanov, born on 25 November 1980, is a national of Uzbekistan. He is a

merchant and a devout Muslim. It is alleged that Mr. Akhmadjanov, his friends and his

family were persecuted by the Uzbek authorities because of Mr. Akhmadjanov’s religious

studies. To save his family from further oppression, Mr. Akhmadjanov fled Uzbekistan at

the age of 21.

5.

Mr. Akhmadjanov initially travelled to the Russian Federation, where he worked in

car wash facilities and on construction sites. He then travelled to the Islamic Republic of

Iran, believing it to be a safer and easier place to make a living. There, he kept a stand at a

market where he resold clothes bought wholesale. While on a trip to Istanbul, he met his

future wife, whom he married in her hometown of Afyon, Turkey, in December 2007. The

couple then moved together to the Islamic Republic of Iran.

6.

The source alleges that in December 2009 the Iranian authorities deported Mr.

Akhmadjanov to the border station near Herat, Afghanistan, where he remained for several

months. The commander of the border station demanded that Mr. Akhmadjanov pay him

money, but Mr. Akhmadjanov asserted his innocence and refused. Shortly thereafter, the

Afghan authorities transferred Mr. Akhmadjanov, who was then placed under the custody

of the United States authorities.

7.

The source further alleges that Mr. Akhmadjanov was detained by the United States

authorities at Bagram Theatre Internment Facility from 23 May 2010 to December 2014.

During that time, Mr. Akhmadjanov was held mostly incommunicado, without charges and

with no meaningful opportunity to challenge his detention. According to the source, the

only body that could review his detention was the detainee review board, which assigned

personal representatives who were not legally trained and were not bound by the attorney-

client duty of confidentiality or loyalty to the detainee. Non-Afghan detainees like Mr.

Akhmadjanov requested permission for their lawyers to be allowed to participate in the

process. Those requests were denied, however. As a result, Mr. Akhmadjanov was

imprisoned for five and a half years without charge or trial and on the basis of allegations

that he was unable to refute.

8.

The source states that Mr. Akhmadjanov was subjected to physical abuse while

under the custody of the United States authorities. On 6 September 2013, during a video

call arranged by the International Committee of the Red Cross, Mr. Akhmadjanov’s spouse

noticed that her husband had bruises around his left eye. He indicated that he had been

beaten.

9.

In 2014, the United States Department of Defense decided to end its detention

operations at Bagram Theatre Internment Facility and to transfer all the remaining prisoners

not facing charges under United States law. The United States repatriated or resettled most

non-Afghan detainees. By December 2014, however, six non-Afghan detainees remained,

including Mr. Akhmadjanov, who had consistently expressed credible fear that he would be

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tortured upon return to his country of origin. United States officials assured him that he

would not be repatriated. At the end of 2014, Mr. Akhmadjanov was returned to Afghan

custody.

10.

According to the information received, the Afghan authorities have held Mr.

Akhmadjanov at the Afghan National Detention Facility since 6 December 2014. The

source states that authorities from the Ministry of Foreign Affairs of Uzbekistan visited Mr.

Akhmadjanov and tried to convince him to accompany them to Uzbekistan. When Mr.

Akhmadjanov refused, the Uzbek authorities told Mr. Akhmadjanov that they nonetheless

expected to see him soon after he had been tried under Afghan law. The source alleges that

the Uzbek authorities have also actively tried to persuade the Government of Afghanistan to

transfer Mr. Akhmadjanov under their custody.

11.

On 11 February 2015, the Primary Court of Parwan acquitted Mr. Akhmadjanov of

all charges under Afghan law. That court concluded that there was no evidence to indicate

that Mr. Akhmadjanov was a member of an anti-government group, as charged. On 14 June

2015, the Public Safety Office of Parwan Appellate Court issued a final decision affirming

Mr. Akhmadjanov’s acquittal. The Appellate Court found that Mr. Akhmadjanov had not

committed any crimes against Afghan citizens or the interests of Afghanistan, adding that

Mr. Akhmadjanov’s presence in Afghanistan may have been involuntary because he had

been unwillingly deported to Afghanistan from the Islamic Republic of Iran. Therefore, the

Appellate Court ruled that Mr. Akhmadjanov should be released from the Afghan National

Detention Facility and extradited in accordance with international law to guarantee his

safety and security. The source has provided the text of the Appellate Court’s ruling

supporting that allegation.

12.

The source states that, despite having been cleared for release, Mr. Akhmadjanov

remains at the Afghan National Detention Facility, where the conditions of his confinement

are rapidly deteriorating. The source also states that in April 2015 Mr. Akhmadjanov was

subjected to five days of solitary confinement and that he has suffered ill-treatment at the

Facility. More specifically, in at least one instance, the guards removed Mr. Akhmadjanov

from his cell and beat him, screaming at him and accusing him of coming to Afghanistan to

wage jihad. As a result of that beating, Mr. Akhmadjanov suffered a broken finger, a

bloodied mouth and nose, and bruises. The source concludes that Mr. Akhmadjanov is at

significant risk of being subjected to torture or physical harm by the Afghan officials at the

Facility.

13.

In January 2016, Mr. Akhmadjanov began a hunger strike to protest his continued

imprisonment and treatment. The hunger strike lasted nearly two weeks and led to a

significant deterioration in Mr. Akhmadjanov’s health. According to the information

received, during the hunger strike the Afghan authorities transferred Mr. Akhmadjanov and

two other detainees, also on hunger strike, to the “death row” cell block at the Afghan

National Detention Facility. That block allegedly houses the most violent and non-

compliant convicted prisoners, including those with severe mental illnesses and those

awaiting execution. As a result, Mr. Akhmadjanov faces daily threats from other prisoners

and fears for his life. The prison authorities have allegedly made it clear to Mr.

Akhmadjanov that they will not protect him should those threats be acted upon.

14.

The source further alleges that the prison authorities continue to deny Mr.

Akhmadjanov adequate food, clothing and access to medical care. The prison guards

routinely cut food rations as a form of collective punishment whenever a prisoner in the cell

block is uncooperative. In addition, Mr. Akhmadjanov has had only one set of clothes and

one pair of shoes for the past seven months and no access to laundry facilities. He has

repeatedly requested, and been denied, access to medical care for physical injuries suffered

while in custody. His health is rapidly deteriorating and he is allegedly in imminent danger

of being injured or killed in prison.

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15.

The source asserts that there are compelling reasons to believe that, if repatriated to

Uzbekistan, Mr. Akhmadjanov will be tortured and possibly killed by the authorities. As a

young adult, Mr. Akhmadjanov was targeted by Uzbek officials as a religious dissident

because he studied with an unofficial mullah. Government officials arrested and tortured

Mr. Akhmadjanov’s friends who studied with the same mullah. The officials also targeted

Mr. Akhmadjanov’s family: his father was fired from his government job and his mother

received threats from government officials. It is that sustained persecution that led Mr.

Akhmadjanov to flee Uzbekistan at the age of 21.

16.

The source adds that the recent actions of the Government of Uzbekistan show its

continued interest in Mr. Akhmadjanov. Uzbek law enforcement authorities have visited

Mr. Akhmadjanov throughout his detention and are allegedly actively trying to persuade the

Government of Afghanistan to repatriate him. The source sustains that forcibly repatriating

Mr. Akhmadjanov to Uzbekistan would virtually guarantee that Mr. Akhmadjanov would

suffer severe mistreatment. It would furthermore violate the non-refoulement obligations of

Afghanistan set out in article 3 of the Convention against Torture and Other Cruel, Inhuman

or Degrading Treatment or Punishment, to which Afghanistan is a party.

17.

The source submits that the continued detention of Mr. Akhmadjanov constitutes

arbitrary deprivation of his liberty under categories I, III and V of the Working Group.

18.

In relation to category I, the source indicates that Mr. Akhmadjanov’s detention is

arbitrary under international law because it is indefinite, prolonged and lacking in

justifiable purpose. There is no legitimate purpose for his continued detention because the

Afghan courts at both the primary and appellate levels have acquitted him of all charges.

The detention of Mr. Akhmadjanov therefore is contrary to article 9 of the Universal

Declaration of Human Rights and article 9 (1) of the Covenant, which underline that

deprivation of liberty must be carried out in accordance with domestic law and procedures.

19.

Furthermore, the source indicates that Mr. Akhmadjanov’s detention is arbitrary

because it is both indefinite and prolonged. It is indefinite because Mr. Akhmadjanov is not

serving a criminal sentence and Afghanistan has given no justification for his detention or

indicated when he will be released. His detention is prolonged because it is excessive in

duration. Mr. Akhmadjanov has been detained in Afghanistan for over six years, five of

which were spent under the custody of the United States, with no charge or trial. As of June

2016, he has spent 16 months under Afghan custody. Although confinement may be

justifiable while a detainee is awaiting trial, Afghanistan is obliged to promptly release Mr.

Akhmadjanov following his acquittal. Failure to do so constitutes prolonged detention

under the present circumstances and renders his detention arbitrary.

20.

The source points out that Mr. Akhmadjanov’s detention serves no legitimate

purpose, as he is not awaiting trial or any other government proceeding, nor is he serving a

criminal sentence. To the extent that Afghanistan might claim that it has the authority to

administratively detain Mr. Akhmadjanov pursuant to its security powers, that claim is at

odds with both international humanitarian law and international human rights law. Under

international human rights law, States bear the burden of proving that administrative

detention is justified given the existence of the most exceptional circumstances, in other

words the existence of a present, direct and imperative threat that cannot be addressed

through alternative measures. Mr. Akhmadjanov’s case does not present such exceptional

circumstances because he has already been tried and acquitted in the Afghan criminal

system. Furthermore, during the six years he has been detained in Afghanistan, the United

States and Afghan authorities have had ample opportunities to produce evidence that Mr.

Akhmadjanov poses a security danger. The fact that the Appellate Court found no evidence

of wrongdoing demonstrates that he poses no imperative threat. Thus, the circumstances do

not warrant administrative detention.

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21.

The source adds that the non-refoulement obligations of Afghanistan cannot, under

international law, form a basis for Mr. Akhmadjanov’s continued detention in Afghanistan.

The source draws attention to the findings of the Human Rights Committee indicating that

the inability of a State to carry out the expulsion of an individual because of statelessness or

other obstacles does not justify indefinite detention. Allegations of threats against Mr.

Akhmadjanov from the Uzbek authorities present grounds against Mr. Akhmadjanov’s

repatriation but cannot justify his continued detention in Afghanistan.

22.

In relation to category III, the source claims that Mr. Akhmadjanov’s detention is

arbitrary because he lacks access to a fair trial to challenge his continued detention. Various

procedural deficiencies surround Mr. Akhmadjanov’s continued detention. More

specifically, the Government of Afghanistan has allegedly denied judicial review, as well as

access to legal counsel to challenge his continued detention following his acquittal. The

authorities have also purportedly failed to inform him of the basis for his continued

detention. Those deficiencies demonstrate significant non-observance of the international

norms relating to the right to a fair trial and therefore constitute deprivation of liberty under

category III of the Working Group, rendering his detention arbitrary.

23.

The source asserts that the Government of Afghanistan has denied Mr.

Akhmadjanov the right to a prompt judicial review of his detention. No court has reviewed

his continued detention following his final acquittal by the Parwan Appellate Court on 14

June 2015. The source attests that a 12-month delay in obtaining judicial review is

unjustifiable under any circumstances but is especially egregious in the light of Mr.

Akhmadjanov’s acquittal. His inability to obtain judicial review prevents him from

challenging his detention in a fair trial.

24.

In addition, according to the information received, the authorities have denied Mr.

Akhmadjanov access to counsel to address his continued detention and to advocate for his

resettlement. The source draws attention to the fact that international law guarantees to all

detainees the right to access to counsel. The Government of the United States denied Mr.

Akhmadjanov all access to counsel from 2010 to 2014. The Government of Afghanistan

provided counsel for the limited purpose of criminal defence; since he was acquitted of all

criminal charges, however, Mr. Akhmadjanov has been denied representation for the

purpose of challenging his continued detention and repatriation. He has had no confidential

communication with his counsel, despite the counsel’s request to speak to Mr.

Akhmadjanov. To date, the authorities have left the request unanswered.

25.

The source also states that the Government of Afghanistan has failed to provide Mr.

Akhmadjanov with justification for his continued detention following his acquittal, contrary

to article 9 (2) of the Covenant. He therefore cannot meaningfully challenge his detention

without knowing the Government’s reasons for detaining him.

26.

The source concludes that, individually or combined, these three procedural

deficiencies — denial of judicial review, denial of access to counsel and lack of an

explanation for his post-acquittal detention — constitute significant non-observance of the

international norms relating to Mr. Akhmadjanov’s right to a fair trial. Those circumstances

render Mr. Akhmadjanov’s detention arbitrary according to category III.

27.

Finally, the source claims that the harsh treatment that Mr. Akhmadjanov has

endured under Afghan custody is due to his status as a foreign national. To the extent that

the treatment accorded Mr. Akhmadjanov by Afghanistan depends on his nationality, such

treatment constitutes unlawful discrimination and is itself a basis for declaring his detention

arbitrary under category V.

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Response from the Government of Afghanistan

28.

On 20 June 2016, the Working Group transmitted the allegations from the source to

the Government of Afghanistan under its regular communications procedure. The Working

Group requested the Government to provide detailed information by 19 August 2016 about

the situation of Mr. Akhmadjanov and any comments about the source’s allegations. The

Working Group also requested the Government to clarify the factual and legal grounds

invoked by the authorities to justify the continued detention of the other two individuals

mentioned above and to provide details regarding the conformity of their deprivation of

liberty and apparent lack of fair judicial proceedings with domestic legislation and

international human rights norms, including those that constitute legal obligations for

Afghanistan under the human rights treaties it has ratified.

29.

The Working Group regrets that it did not receive a response from the Government

to its communication, nor did the Government request an extension of the time limit for its

reply, as provided for in the Working Group’s methods of work.

Response from the Government of the United States

30.

On 20 June 2016, the Working Group transmitted the allegations from the source to

the Government of the United States under its regular communications procedure. The

Working Group requested the Government to provide detailed information by 19 August

2016 about the factual and legal grounds invoked by the authorities to justify the detention

of Mr. Akhmadjanov at Bagram Theatre Internment Facility from 23 May 2010 to

December 2014 and to provide details regarding the conformity of his deprivation of liberty

and apparent lack of fair judicial proceedings with international human rights norms.

31.

On 5 August 2016, the Government replied with a request to extend the time limit

for its reply, which was granted. On 13 September 2016, the Government submitted its

reply, in which it states that the individual in question was lawfully detained by the United

States under the Authorization for Use of Military Force (United States Public Law 107-

40), as informed by international humanitarian law, in the ongoing armed conflict. The

Government argues that international humanitarian law constitutes lex specialis vis-à-vis

human rights law in situations of armed conflict and, as such, is the controlling body of law

with regard to the conduct of hostilities and the protection of victims of war.

32.

The Government further submitted that, at the end of 2014, the United States

transferred the remaining third-country-national detainees who were being held in its

custody in Afghanistan. The Government explained that its policy on humane transfers was

based on the consideration of all relevant facts and circumstances concerning each

individual to determine an appropriate course of action, which includes refraining from

transferring an individual to any country where he or she is more likely than not to face

torture. The Government argued that the decision to transfer Mr. Akhmadjanov to Afghan

custody was considered the best available option under the circumstances but did not

furnish any further details concerning that decision.

33.

While referring the Working Group to the Government of Afghanistan for any

further questions relating to Mr. Akhmadjanov, the Government of the United States stated

that it continued to engage with the Government of Afghanistan regarding the welfare of

Mr. Akhmadjanov and continued to urge the Government of Afghanistan to uphold its

obligations with regard to ensuring humane treatment. The Government of the United

States also stated that it continued to discuss with the Government of Afghanistan options

regarding the detainee’s long-term disposition, taking into account the domestic laws and

international legal obligations of Afghanistan.

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Comments from the source to the response of the Government of the United States

34.

On 29 September 2016, the Working Group transmitted the reply received from the

Government of the United States to the source and requested a reply by 1 November 2016.

35.

On 8 November 2016, the source submitted its reply to the information provided by

the Government of the United States. That reply was received by the Working Group on 16

November 2016.

36.

In its response, the source rebuts the argument by the Government of the United

States that the Working Group’s mandate should not extend to Mr. Akhmadjanov because

international humanitarian law constitutes lex specialis and is thus the controlling body of

law in the present case. The source refers to a previous opinion of the Working Group, in

which it noted that the application of international humanitarian law to an international or

non-international armed conflict does not exclude the application of human rights law. The

two bodies of law are complementary and not mutually exclusive.1

37.

The source further argues that the invocation of international humanitarian law is

especially inappropriate given the circumstances of the present case and since the United

States transferred Mr. Akhmadjanov to Afghan civilian custody for criminal prosecution.

Under regular criminal processes, Afghan authorities acquitted Mr. Akhmadjanov of all

charges.

38.

The source also rebuts the argument by the Government of the United States that it

continues to engage with the Government of Afghanistan regarding Mr. Akhmadjanov’s

welfare. While noting that such efforts are welcome, the source submits that they have not

produced any concrete results for Mr. Akhmadjanov. The source contends that, having been

detained for years under United States custody at Bagram Theatre Internment Facility, Mr.

Akhmadjanov carries the stigma of having been suspected as a terrorist by the United

States. According to the source, it is that stigma that keeps him in indefinite detention. The

source notes that the Government of Afghanistan lacks the financial resources to provide

Mr. Akhmadjanov with humane living conditions. Noting also the lack of political capital

held by the Government of Afghanistan to find him a third country where he could be

resettled, the source points out that over the years the United States has successfully

resettled hundreds of individuals detained at Guantanamo. The source therefore argues that

support from the Government of the United States could finally bring an end to the arbitrary

detention of Mr. Akhmadjanov.

39.

The source therefore requests the Working Group to recommend that the

Government of the United States engage with the Government of Afghanistan with a view

to providing it with support in seeking a safe third country for resettlement. In order to

protect Mr. Akhmadjanov from non-refoulement violations, the source asks the Working

Group to work closely with the Special Rapporteur on torture and other cruel, inhuman or

degrading treatment or punishment to oversee Mr. Akhmadjanov’s resettlement to a safe

third country. The source also asks the Working Group to find that the prolonged and

indefinite detention of Mr. Akhmadjanov is arbitrary under categories I and III. Lastly, it

asks that the Working Group recommend that Mr. Akhmadjanov be provided with

meaningful access to counsel and that he be immediately released from Afghan custody.

1 See opinion No. 44/2005 (Iraq and the United States of America), para. 13.

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Discussion

In relation to the United States

40.

The Working Group recalls that, in accordance with paragraph 17 (a) of its methods

of work, it may render an opinion on whether or not the deprivation of liberty has been

arbitrary notwithstanding the release of the person concerned. In the present case, the

Working Group will deliver its opinion on the detention of Mr. Akhmadjanov by the United

States notwithstanding the fact that the United States handed over the individual concerned

to the Afghan authorities, as his detention has continued since the handover.

41.

The source alleges that Mr. Akhmadjanov was detained by the United States

authorities at Bagram Theatre Internment Facility from 23 May 2010 to December 2014

and that, during that time, he was held mostly incommunicado, without charges and with no

meaningful opportunity to challenge his detention. According to the source, the only body

that could review his detention was the detainee review board, which assigned personal

representatives who were not legally trained and were not bound by the attorney-client duty

of confidentiality or loyalty to the detainee. In its reply of 13 September 2016, the

Government of the United States stated that the detention of Mr. Akhmadjanov was in

accordance with the Authorization for Use of Military Force (United States Public Law

107-40), as informed by international humanitarian law, in the ongoing armed conflict. The

Government further argued that, in the present situation, international humanitarian law

constitutes lex specialis vis-à-vis human rights law.

42.

The Working Group reiterates that, in accordance with its deliberation No. 9

concerning the definition and scope of arbitrary deprivation of liberty under customary

international law, the prohibition of arbitrary detention is part of customary international

law and, in fact, constitutes a jus cogens norm.2 That means that no derogations on behalf

of States are permissible and no exceptional circumstances, be they a state of emergency or

armed conflict, may be invoked to justify restrictions to an individual’s liberty through

arbitrary detention. Moreover, as correctly pointed out by the source, the Working Group

has already noted that the application of international humanitarian law to an international

or non-international armed conflict does not exclude the application of human rights law.

The two bodies of law are complementary and not mutually exclusive.3

43.

The Working Group also wishes to recall the concluding observations of the Human

Rights Committee on the fourth periodic report of the United States, in which the

Committee stated that the United States should end the system of administrative detention

without charge or trial and ensure that any criminal cases against detainees held in

Guantanamo and in military facilities in Afghanistan are dealt with through the criminal

justice system rather than military commissions, and that those detainees are afforded the

fair trial guarantees enshrined in article 14 of the Covenant.4

44.

The domestic legislation referred to by the Government of the United States as a

basis for the detention in the present case is a general law that gives the United States

President power over military operations. That law cannot be considered as a ground for the

detention of anyone without cause. In the present case, and in its response, the Government

of the United States has failed to provide legitimate grounds for the arrest and detention of

Mr. Akhmadjanov. Hence, both the arrest and the subsequent detention, which lasted some

four years, are without basis and therefore arbitrary within category I.

2 See A/HRC/22/44, para. 51.

3 See opinion No. 44/2005 (Iraq and the United States of America), para. 13.

4 See CCPR/C/USA/CO/4, para. 21.

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45.

Furthermore, the Working Group notes that the Government of the United States did

not reply to any of the specific allegations made by the source regarding the detention of

Mr. Akhmadjanov and only stated that his detention was in accordance with the

Authorization for Use of Military Force (United States Public Law 107-40). The Working

Group has in its jurisprudence established the ways in which it deals with evidentiary

issues. If the source has established a prima facie case for breach of international

requirements constituting arbitrary detention, the burden of proof should be understood to

rest upon the Government if it wishes to refute the allegations.5 In the present case, the

Government has chosen not to challenge the prima facie credible allegations made by the

source.

46.

As the Human Rights Committee has stated in paragraph 24 of its general comment

No. 35 (2014) on liberty and security of person, article 9 (2) of the Covenant imposes two

requirements for the benefit of persons who are deprived of liberty. First, they shall be

informed, at the time of arrest, of the reasons for the arrest. Second, they shall be promptly

informed of any charges against them. In the case of Mr. Akhmadjanov’s detention by the

United States authorities, both elements of article 9 (2) have been violated. Furthermore,

the right under article 9 of the Covenant to be brought before a judge so as to determine the

legality of the detention has been violated.

47.

The Working Group is particularly alarmed by the source’s allegation that Mr.

Akhmadjanov has been held incommunicado. As the Human Rights Committee notes in

paragraph 35 of its general comment No. 35, incommunicado detention that prevents

prompt presentation before a judge inherently violates article 9 (3).6 It is thus clear that, by

holding Mr. Akhmadjanov incommunicado, the United States has violated his rights under

article 9 (3) of the Covenant.

48.

Consequently, the detention of Mr. Akhmadjanov in the custody of the United States

from May 2010 to December 2014 was arbitrary and falls within category III.

In relation to Afghanistan

49.

In the absence of a response from the Government of Afghanistan, the Working

Group has decided to render the present opinion, in conformity with paragraph 15 of its

methods of work.

50.

The Working Group has in its jurisprudence established the ways in which it deals

with evidentiary issues. If the source has established a prima facie case for breach of

international requirements constituting arbitrary detention, the burden of proof should be

understood to rest upon the Government if it wishes to refute the allegations.7 In the present

case, the Government has chosen not to challenge the prima facie credible allegations made

by the source.

51.

The Working Group, in its deliberation No. 9 concerning the definition and scope of

arbitrary deprivation of liberty under customary international law, has unequivocally stated

that the prohibition of arbitrary detention is part of customary international law and, in fact,

constitutes a jus cogens norm.8 That means that no derogations on behalf of States are

permissible and no exceptional circumstances, be they a state of emergency or armed

conflict, may be invoked to justify restrictions to an individual’s liberty through arbitrary

detention. As the Working Group has stated, a State can never claim that illegal, unjust or

5 See A/HRC/19/57, para. 68.

6 See communication No. 1297/2004, Medjnoune v. Algeria, Views adopted on 14 July 2006, para. 8.7.

7 See A/HRC/19/57, para. 68.

8 See A/HRC/22/44, para. 51.

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unpredictable deprivation of liberty is necessary for the protection of a vital interest or

proportionate to that end.9

52.

Equally, in its deliberation No. 9 concerning the definition and scope of arbitrary

deprivation of liberty under customary international law, the Working Group recognized

the right to bring proceedings before a court in order to challenge the legality of the

detention as a non-derogable right.10 The Working Group has further confirmed as much in

the United Nations Basic Principles and Guidelines on Remedies and Procedures on the

Rights of Anyone Deprived of Their Liberty to Bring Proceedings Before a Court, in which

it states that the right to challenge the lawfulness of detention is a self-standing human right

and a judicial remedy that is essential to preserve legality in a democratic society.11

53.

The position of the Working Group is in full conformity with that of the Human

Rights Committee, which, in its general comment No. 35 stresses that the right to review by

a court of the legality of detention applies to all persons deprived of liberty. In the same

general comment, the Committee adds that the unauthorized confinement of prisoners

beyond the length of their sentences is arbitrary as well as unlawful (paras. 4 and 11).

54.

In the present case, Mr. Akhmadjanov exercised his right to challenge the legality of

his detention before a court. Thus, on 11 February 2015, the Primary Court of Parwan

acquitted Mr. Akhmadjanov of all charges under Afghan law and concluded that there was

no evidence to indicate that Mr. Akhmadjanov was a member of an anti-government group,

as charged. On 14 June 2015, the Public Safety Office of the Parwan Appellate Court

issued a final decision affirming Mr. Akhmadjanov’s acquittal. The Appellate Court found

that Mr. Akhmadjanov had not committed any crimes against Afghan citizens or the

interests of Afghanistan, adding that Mr. Akhmadjanov’s presence in Afghanistan may

have been involuntary because he had been unwillingly deported to Afghanistan from the

Islamic Republic of Iran. Therefore, the Appellate Court ruled that Mr. Akhmadjanov

should be released from the Afghan National Detention Facility and extradited in

accordance with international law to guarantee his safety and security. The Government of

Afghanistan has not rebutted the allegations. Consequently, as of the date of the coming

into legal force of the decision of the Appellate Court, the continued detention of Mr.

Akhmadjanov no longer has any legal basis and is contrary to article 9 of the Covenant. It

therefore constitutes arbitrary detention under category I.

55.

Moreover, Mr. Akhmadjanov’s rights under article 14 (3) (b) and (d) of the

Covenant have also been violated since, despite being provided with legal counsel for the

limited purpose of criminal defence, Mr. Akhmadjanov has been denied, since his acquittal

of all criminal charges, any legal representation for the purpose of challenging his

continued detention and repatriation. As the Human Rights Committee has stated in

paragraph 10 of its general comment No. 32 (2007) on the right to equality before courts

and tribunals and to a fair trial, the availability or absence of legal assistance often

determines whether or not a person can access the relevant proceedings or participate in

them in a meaningful way.

56.

Furthermore, the Human Rights Committee states in paragraph 24 of its general

comment No. 35 that article 9 (2) of the Covenant imposes two requirements for the benefit

of persons who are deprived of liberty. First, they shall be informed, at the time of arrest, of

the reasons for the arrest. Second, they shall be promptly informed of any charges against

them. The Afghan authorities have not furnished any reasons for the continued detention of

Mr. Akhmadjanov, thus violating his rights under article 9 (2) of the Covenant.

9 Ibid., para. 48.

10 Ibid., para. 49.

11 See A/HRC/30/37, paras. 2 and 3.

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11

57.

The failure of the Afghan authorities to provide Mr. Akhmadjanov with the reasons

for his continued detention is not only a violation of article 9 (2) of the Covenant: it also

renders the right of Mr. Akhmadjanov to challenge his detention before a court entirely

ineffective. Without knowing the charges against him or the reasons for his continued

detention, Mr. Akhmadjanov is unable to challenge his detention. That serious breach of a

non-derogable right, combined with the failure to provide access to legal counsel, renders

the continued detention of Mr. Akhmadjanov arbitrary under category III.

58.

Finally, the source claims that the harsh treatment that Mr. Akhmadjanov has

endured while under Afghan custody is due to his status as a foreign national and on that

basis the source has argued that Mr. Akhmadjanov has been discriminated against on the

basis of nationality. The Working Group is unable to establish with the requisite degree of

certainty that the facts presented by the source disclose a particular targeting of Mr.

Akhmadjanov on the basis of nationality and concludes that the facts presented by the

source are insufficient to substantiate such an allegation. The Working Group therefore is

of the opinion that the continued detention of Mr. Akhmadjanov does not fall under

category V.

Non-refoulement

59.

The source has also submitted that the ultimate release of Mr. Akhmadjanov by the

Afghan authorities must take into account the prohibition of non-refoulement and noted that

the United States too cannot absolve itself of responsibility in the matter. The source has

made credible allegations, which neither of the two Governments have addressed, based on

the fact that Mr. Akhmadjanov is a national of Uzbekistan. The Working Group also notes

the submission by the source that, when Mr. Akhmadjanov was transferred to Afghan

custody, he was provided with assurances by the United States authorities that he would not

be repatriated to Uzbekistan. The Working Group notes that the Government of the United

States has not replied to that submission.

60.

The Working Group reiterates the position it adopted in its legal opinion on

preventing arbitrary detention in the context of international transfer of detainees,

particularly in countering terrorism, on the need for Governments to include the risk of

arbitrary detention in the receiving State per se among the elements to be taken into

consideration when asked to extradite, deport, expel or otherwise hand a person over to the

authorities of another State.12

61.

Accordingly, in order to remove a person to a State where there is a genuine risk that

the person will be detained without legal basis, or without charges over a prolonged time, or

tried before a court that manifestly follows orders from the executive branch, cannot be

considered compatible with the obligation in article 2 of the Covenant, which requires that

States parties respect and ensure the Covenant rights for all persons in their territory and

under their control.13

62.

In relation to the Government of the United States, the Working Group wishes to

recall the above-mentioned concluding observations of the Human Rights Committee, in

which the Committee stated that the State party should strictly apply the absolute

prohibition against refoulement under articles 6 and 7 of the Covenant.14 Similarly, the

Committee against Torture, in its concluding observations on the combined third to fifth

periodic reports of the United States, called upon the State party to ensure that no

individual, including persons suspected of terrorism, who is expelled, returned, extradited

12 See A/HRC/4/40, para. 49.

13 Ibid.

14 See CCPR/C/USA/CO/4, para. 13.

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12

or deported, is exposed to the danger of torture or other cruel, inhuman or degrading

treatment or punishment.15

63.

The Working Group urges the Government of Afghanistan and the Government of

the United States to comply with their obligations concerning non-refoulement. The

Working Group also notes the serious allegations of torture and ill-treatment made by the

source. The Working Group therefore refers the case to the Special Rapporteur on torture

and other cruel, inhuman or degrading treatment or punishment.

64.

Finally, the Working Group notes that the source alleged that the Iranian authorities

had arrested Mr. Akhmadjanov and deported him to the border station near Herat,

Afghanistan, where he was held for several months before being transferred to the United

States authorities and then back to the Afghan authorities. The Working Group recalls that

it is possible for another State to share responsibility for human rights violations where its

actions contribute to the arbitrary deprivation of liberty. In the present case, however, no

evidence was submitted in relation to the conduct of the Iranian authorities and the

Working Group has decided not to pursue the matter.

Disposition

65.

In the light of the foregoing, the Working Group renders the following opinion:

The deprivation of liberty of Laçin Akhmadjanov by Afghan and United States

authorities being in contravention of articles 2, 3 and 10 of the Universal Declaration

of Human Rights and of articles 9 and 14 of the International Covenant on Civil and

Political Rights, is arbitrary and falls within categories I and III.

66.

The Working Group requests the two Governments jointly to take the steps

necessary to remedy the situation of Mr. Akhmadjanov without any further delay and to

bring that situation in conformity with their international obligations under the Universal

Declaration of Human Rights and the Covenant.

67.

Taking into account all the circumstances of the case, the Working Group considers

that the adequate remedy would be to immediately release Mr. Akhmadjanov and to accord

to him an enforceable right to compensation in accordance with article 9 (5) of the

Covenant. The Working Group reminds both Governments to abide by their obligations

concerning non-refoulement in relation to Mr. Akhmadjanov.

68.

Finally, the Working Group considers it necessary and appropriate to refer the

present case to the Special Rapporteur on torture and other cruel, inhuman or degrading

treatment or punishment for appropriate measures in relation to the allegations of torture.

Follow-up procedure

69.

In accordance with paragraph 20 of its methods of work, the Working Group

requests the source and the two Governments concerned to provide it with information on

action taken in follow-up to the recommendations made in the present opinion, including:

(a)

Whether Mr. Akhmadjanov has been released and, if so, on what date;

(b)

Whether compensation or other reparations have been made to Mr.

Akhmadjanov;

(c)

Whether an investigation has been conducted into the violation of Mr.

Akhmadjanov’s rights and, if so, the outcome of the investigation;

15 See CAT/C/USA/CO/3-5, para. 16.

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13

(d)

Whether any legislative amendments or changes in practice have been made

to harmonize the laws and practices of the two Governments with their international

obligations in line with the present opinion;

(e)

Whether any other action has been taken to implement the present opinion.

70.

The two Governments are invited to inform the Working Group of any difficulties

they may have encountered in implementing the recommendations made in the present

opinion and whether further technical assistance is required, for example, through visits by

the Working Group.

71.

The Working Group requests the source and the two Governments to provide the

above information within six months of the date of the transmission of the present opinion.

However, the Working Group reserves the right to take its own action in follow-up to the

opinion if new concerns in relation to the case are brought to its attention. Such action

would enable the Working Group to inform the Human Rights Council of progress made in

implementing its recommendations, as well as any failure to take action.

72.

The Working Group recalls that the Human Rights Council has encouraged all

States to cooperate with the Working Group and requested them to take account of its views

and, where necessary, to take appropriate steps to remedy the situation of persons arbitrarily

deprived of their liberty, and to inform the Working Group of the steps they have taken.16

[Adopted on 23 November 2016]

16 See Human Rights Council resolution 24/7, paras. 3 and 7.