Opinion; Subjects: TAJIKISTAN, 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.19-09494(E)
Human Rights Council
Working Group on Arbitrary Detention
Opinions adopted by the Working Group on Arbitrary
Detention at its eighty-fourth session, 23 April–3 May 2019
Opinion No. 17/2019 concerning Buzurgmehr Yorov (Tajikistan)
1.
The Working Group on Arbitrary Detention was established in resolution 1991/42 of
the Commission on Human Rights. In its resolution 1997/50, the Commission extended and
clarified the mandate of the Working Group. Pursuant to General Assembly resolution
60/251 and Human Rights Council decision 1/102, the Council assumed the mandate of the
Commission. The Council most recently extended the mandate of the Working Group for a
three-year period in its resolution 33/30.
2.
In accordance with its methods of work (A/HRC/36/38), on 15 November 2018 the
Working Group transmitted to the Government of Tajikistan a communication concerning
Buzurgmehr Yorov. The Government submitted a late response on 18 January 2019. The
State is a party 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);
(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).
United Nations
A/HRC/WGAD/2019/17
General Assembly
Distr.: General
12 June 2019
Original: English
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Submissions
Communication from the source
4.
Buzurgmehr Yorov, a Tajik citizen, was born in 1971, and usually resides in
Dushanbe. Mr. Yorov is a human rights lawyer and member of the opposition Social
Democratic Party.
5.
The source reports that, in 2007, Mr. Yorov founded the Sipar law firm and was
frequently involved in high-profile cases, representing individuals prosecuted on allegedly
politically motivated charges, as well as citizens and entrepreneurs whose businesses were
raided or seized. Mr. Yorov quickly earned a reputation as a fearless human rights lawyer in
Tajikistan. He publicly condemned human rights abuses on numerous occasions by making
statements, publishing articles and taking on clients who were victims of governmental
abuses. Because Mr. Yorov’s law firm consistently took a stance against the Government’s
interest, the Government reportedly targeted it in multiple specious criminal actions and
civil law suits. Nonetheless, Mr. Yorov continued to provide dedicated representation and
advocacy to political leaders and opposition figures.
Arrest and detention
6.
According to the source, in 2015, the Government launched a crackdown on the
Islamic Renaissance Party of Tajikistan, an opposition political party. Before, during and
after the elections held in March 2015, members of the party were beaten, harassed and
imprisoned. On 4 September 2015, an armed clash between government forces and
militants loyal to a general allegedly provided the Government with the pretext necessary to
ban the Islamic Renaissance Party of Tajikistan altogether. The Government alleged that
the clash was an act of Islamic terrorism by the party, and the Supreme Court declared it a
terrorist organization.
7.
In September 2015, following the Government’s raids, arrest and detention of
opposition members on unsubstantiated allegations, Mr. Yorov took on the representation
of high-level officials of the Islamic Renaissance Party of Tajikistan. On 26 September
2015, he met with a client and several other members of the party leadership, who were
being held in a detention facility, and learned about the abuse that several of them had
endured. On 28 September 2015, Mr. Yorov made a public statement alleging that one of
his clients had been tortured while in custody. Mr. Yorov announced that he would file a
claim for illicit conduct against the officials involved.
8.
The source reports that Government officials arrested Mr. Yorov, on 28 September
2015, at the offices of the Police Unit for Combating Organized Crime, and demanded that
he withdraw his representation of members of the Islamic Renaissance Party of Tajikistan.
Mr. Yorov was interrogated for 10 hours, during which time he was beaten and questioned
about and accused of alleged complicity in the uprising of 4 September 2015. Mr. Yorov’s
attorney was present for only one and a half hour of the interrogation, after which he left
and withdrew from representation, likely because of fear of reprisal. Mr. Yorov was not
given access to any other legal counsel during the interrogation. The government authorities
also conducted raids of Mr. Yorov’s office and home, without warrants, seizing books and
privileged and confidential legal documents.
9.
On 29 September 2015, Mr. Yorov was transported from the police offices to a
SIZO, a pretrial temporary detention facility. That day, the Government seized, without a
warrant, Mr. Yorov’s laptop, which contained privileged legal information, including client
case files and documents. According to the source, Mr. Yorov was officially informed that
he had been arrested on suspicion of fraud and forgery, not for his alleged involvement in
the events of 4 September. At the time, the Ministry of the Interior published an article on
its website that an “attorney-fraudster” had been detained. Mr. Yorov was kept for nine
days in the SIZO before being moved to the Dushanbe detention facility, where he was
allegedly subjected to poor living conditions, abused by detention officers and placed in
solitary confinement on multiple occasions, from 3 to 15 days at a time.
10.
In the SIZO, authorities repeatedly demanded that Mr. Yorov stop defending
political opposition figures, with the promise of a reprieve. To put pressure on him, officials
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arranged for members of his family to meet with him to persuade him to cease defending
members of the opposition and, in general, to end his professional activities as an attorney.
Aside from these closely monitored visits, the authorities denied family visits to Mr. Yorov.
11.
On 1 October 2015, three days after his arrest, Mr. Yorov was brought before a
judge to adjudicate the legality of his arrest. The Government requested a “preventative
measure” of detention against Mr. Yorov, even though no charges had yet been filed
against him. The hearing was closed to the public and only one of Mr. Yorov’s attorneys
was allowed to participate. The source reports that the Government did not present any
evidence to support its position that Mr. Yorov was a flight risk or likely to falsify evidence,
influence witnesses or destroy documents that were relevant to his criminal case. The Court
nonetheless granted the petition.
12.
For two months following the hearing, Mr. Yorov was not permitted to see his
family. Similarly, for around 44 days, Mr. Yorov’s two attorneys were not permitted to
meet with him.
13.
On 9 November 2015, Mr. Yorov published a letter announcing a hunger strike to
protest against the violation of his right to legal representation. A week later, the
government authorities permitted him to speak privately with his attorneys. In December
2015, however, the Government arrested one of Mr. Yorov’s attorneys and fellow partner at
his law firm. The source reports that the other attorney was able to meet with Mr. Yorov
privately; however, he became increasingly afraid of reprisals and began to avoid Mr.
Yorov’s family.
14.
On 2 March 2016, the government authorities concluded the investigation, and Mr.
Yorov’s remaining lawyer ceased his representation, allegedly because the Government had
threatened him. On 5 March 2016, Mr. Yorov’s family hired another lawyer to represent
him.
15.
On 5 April 2016, the cases of Mr. Yorov and a co-defendant were classified as secret
after Mr. Yorov began to publish materials documenting inconsistencies in the charges. The
proceedings were henceforth closed to the public. Mr. Yorov was subjected to three trials
between 2016 and 2017.
First trial
16.
The source reports that, on 5 May 2016, a closed trial began against Mr. Yorov and
his co-defendant, who were charged as co-conspirators. Mr. Yorov was regularly brought
into the courtroom wearing handcuffs and placed inside a metal cage. He was tried for
fraud (art. 247 of the Criminal Code), forgery (art. 340), arousing national, racial, local or
religious hostility (art. 189) and extremism (arts. 307 and 307.1). The source notes that the
charge of fraud was based on Mr. Yorov’s alleged failure to represent clients from whom
he had accepted legal fees. The charge of forgery stemmed from a 2011 incident in which
Mr. Yorov reported to the police that the technical inspection certificate for his car had
been forged. The charges for “arousing hostility and extremism” were based on allegations
that Mr. Yorov had published extremist articles or posts online.
17.
According to the source, the prosecution provided scarce evidence to substantiate
the above-mentioned charges. Its witnesses provided identical and, at times, non-sensical
testimony, or denied the Government’s allegations while on the stand; some witnesses even
declared to the court that they were being forced to testify against Mr. Yorov. The allegedly
extremist articles were never presented at trial, allowing Mr. Yorov no opportunity to
review them; the prosecution presented instead an “expert” opinion confirming that the
articles were extremist in nature, without naming Mr. Yorov as the author of the articles.
18.
Mr. Yorov’s lawyer was reportedly not allowed to prepare for or present any
meaningful defence. The prosecution removed 85 pages of evidence from the case file,
preventing the defence from examining the alleged proof of Mr. Yorov’s extremism. In
addition, the evidence against Mr. Yorov was not disclosed to him before the trial. The
Court denied the defence’s motions calling for additional witnesses, and refused to allow
the defence team to submit an expert report.
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19.
The source adds that Mr. Yorov’s brother was arrested during the trial. On 28
September 2016, the prosecutor interrupted Mr. Yorov as he was addressing the jury,
cautioning him to speak less while reminding him of his brother’s arrest. During the trial,
Mr. Yorov read a portion of an 11th-century poem, which both the judge and prosecutor
interpreted as an insult. As a result, he was charged with contempt of court (art. 355 of the
Criminal Code) and insulting a government official (art. 330). The judge, prosecutor and
three jury members of the first trial were identified as victims. None of these victims
recused themselves from Mr. Yorov’s trial.
20.
On 6 October 2016, Mr. Yorov was sentenced to 23 years of imprisonment. His
appeal was denied on 11 April 2017. Mr. Yorov’s attorney was allegedly threatened,
stalked and spied on. Consequently, in December 2016, she ceased her representation of
him, fled Tajikistan and applied for asylum in Europe, fearing for her safety. Thus, during
parts of the first trial, Mr. Yorov had no legal representation.
Second trial
21.
The source reports that the second trial, for contempt of court and insulting
government officials, was also closed to the public. The trial hearings were held in the
temporary detention facility where Mr. Yorov was being held. The defence was reportedly
not afforded the opportunity to call any witnesses or experts or to introduce evidence. Once
again, the Government’s evidence was lacking, based only on the Attorney General’s report
of the poem reading. In addition, the Court denied the defence’s motion for its own expert
report.
22.
The source notes that Mr. Yorov lacked effective representation. He was nominally
represented by a government-appointed intern, who had no work experience and routinely
failed to attend the hearings. Mr. Yorov’s wife therefore had to act as his defence counsel
during parts of the second trial, although she lacked legal experience.
23.
On 16 March 2017, Mr. Yorov was sentenced to two years of imprisonment and one
year of community service, thereby extending his sentence to 25 years.
Third trial
24.
According to the source, on 28 March 2017, Mr. Yorov was further charged with
fraud (art. 247 of the Criminal Code) and with publicly insulting the President in the media
or on the Internet (art. 137). The trial was also closed and Mr. Yorov was not permitted to
present any evidence. Given the Government’s persecution of independent lawyers, Mr.
Yorov’s only available legal representation during the trial was his wife.
25.
The source submits that, to substantiate its fraud allegations, the prosecution
presented no witness testimony and relied on witness statements identical to the
prosecution’s witness statements from the first trial, which alleged that Mr. Yorov received
money to represent certain clients, despite allegedly not representing them. One witness
statement on which the prosecution relied had been altered to implicate him. The
government authorities also argued that Mr. Yorov publicly insulted the President in an
online publication on 8 March 2016 by stating that the status of an attorney was higher than
that of the President, and relied on expert opinions to bolster these claims. Mr. Yorov’s
request to cross-examine the experts was denied.
26.
On 18 August 2017, Mr. Yorov was found guilty and sentenced to 12 years in a
maximum security prison. The combined sentence for Mr. Yorov was extended to 28 years.
Imprisonment and alleged abuse
27.
In September 2017, Mr. Yorov was allegedly beaten so severely that he was
admitted to the detention centre hospital. He had several broken bones, and he was unable
to walk. At least until October 2017, he was regularly placed in solitary confinement,
possibly to hide the brutality of the beatings he was receiving.
28.
On 15 December 2017, Mr. Yorov was transferred to the maximum security colony
No. 1 of Dushanbe. According to the source, information regarding his current detention
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conditions is difficult to obtain, even though the conditions at his pretrial detention centre
were reportedly very harsh.
29.
The source notes that Mr. Yorov’s siblings faced significant harassment and
criminal charges as they advocated for his release. This harassment has continued even
after they fled to Europe, seeking asylum.
30.
The source asserts that the detention of Mr. Yorov constitutes arbitrary deprivation
of his liberty under categories I, II, III and V.
Category I
31.
The source argues that the detention of Mr. Yorov is arbitrary under category I, as he
was arrested without a warrant, without information on why he was being arrested, without
charges for some 12 days following his arrest, and without being presented before a judicial
authority for a habeas corpus hearing for three days. This is a violation of his rights under
articles 9 (2), (3) and (4) of the Covenant.
32.
The source also submits that Mr. Yorov was convicted under overly vague
provisions of the Criminal Code, and he was retroactively convicted for “publicly insulting
the President”, as article 137 was passed seven months after he allegedly committed the
“crime”. This violated his rights under articles 9 (1) and 15 (1) of the Covenant and article
11 (2) of the Universal Declaration of Human Rights.
33.
The source adds that the prosecution failed to present sufficient evidence to justify
Mr. Yorov’s arrest, detention and conviction. The evidence presented at each trial lacked
authenticity, was tainted by coercion, was not tied to Mr. Yorov’s authorship or possession,
and was even exculpatory.
Category II
34.
The source submits that Mr. Yorov’s detention is arbitrary under category II because
he was arrested, detained and convicted for exercising his rights to freedom of expression,
association and political participation, protected by articles 19 (2), 22 (1) and 25 (a) of the
Covenant and articles 19 and 20 (1) of the Universal Declaration of Human Rights. The
source adds that imprisonment of human rights defenders, including lawyers, for speech or
association-related reasons, should be subject to heightened scrutiny.
35.
The source highlights the fact that the Government targeted Mr. Yorov as a means of
preventing him from continuing to represent opposition leaders and government critics. The
source adds that the Government had intimidated and harassed Mr. Yorov for more than 10
years. Similarly, it had harassed and imprisoned other attorneys who represented political
dissidents and detained members of opposition political groups.
36.
In addition, the source refers to the suspicious timing of Mr. Yorov’s arrest, which
was made shortly after he announced that he would file a claim against a government
official who allegedly abused one of his clients. The source also refers to the Government’s
repeated requests to Mr. Yorov to cease representing leaders of the Islamic Renaissance
Party of Tajikistan during his interrogation; the Government’s pressure on Mr. Yorov’s
family by promising his release, provided that he permanently cease defending political
opposition figures; and intense animosity towards Mr. Yorov with multiple trumped-up
charges and trials that added an additional five years to his initial sentence. The source
submits that this reveals the Government’s true motive in imprisoning Mr. Yorov: to punish
him for his critical expression, association and legal representation of politically sensitive
cases.
Category III
37.
The source further asserts that the detention of Mr. Yorov is arbitrary under category
III, because the Government’s violations of fundamental international norms and minimal
standards for due process in its arrest, detention, trial and conviction were so grave as to
render the deprivation of liberty arbitrary.
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38.
According to the source, the Government violated Mr. Yorov’s right not to be
subjected to arbitrary arrest, as protected by article 9 (1) of the Covenant, article 9 of the
Universal Declaration of Human Rights and principles 2 and 36 (2) of the Body of
Principles for the Protection of All Persons under Any Form of Detention or Imprisonment.
The right requires that arrest comply with domestic procedures established in law for
carrying out the legal deprivation of liberty. However, in the case of Mr. Yorov, his arrest
was not based on a genuine suspicion that he had committed a crime.
39.
According to the source, the Government has further violated article 9 (2) of the
Covenant and principle 10 of the Body of Principles. In the present case, the authorities did
not show Mr. Yorov a warrant for his arrest nor did they accurately explain why he was
arrested. The Government’s justification for detaining Mr. Yorov changed repeatedly, and
official charges were not filed until some 12 days after his arrest.
40.
The source also submits that the Government has violated Mr. Yorov’s right to
challenge the legality of his detention, as protected by article 9 (3) and (4) of the Covenant
and principles 4, 11, 32 and 37 of the Body of Principles. Mr. Yorov was arrested on 28
September 2015, but he was not brought before a judge until 1 October 2015, a time frame
that exceeds the requirement that a detainee be brought “promptly” (within 48 hours) before
a judge.
41.
The source refers to article 9 (3) of the Covenant and principles 38 and 39 of the
Body of Principles, whereby an individual has the right to be released pending trial. In this
respect, the source submits that, in denying Mr. Yorov’s release pending his trial, based on
unsupported allegations and without evidence, the court impermissibly defaulted to treating
pretrial detention as a general rule.
42.
According to the source, the Government prevented Mr. Yorov from communicating
with his attorneys from the outset of his detention. Furthermore, it created such a climate of
intimidation that Mr. Yorov could not find competent attorneys to represent him. These acts
violated article 14 (3) (b) and (d) of the Covenant, rules 41 (3) and 61 of the Standard
Minimum Rules for the Treatment of Prisoners (the Mandela Rules) and principles 11 (1),
15, 17 (1) and 18 of the Body of Principles.
43.
The source refers to article 14 (3) (b) of the Covenant and principles 11 (1) and 18 (2)
of the Body of Principles, whereby a criminal defendant has the right to adequate time and
facilities for the preparation of his or her defence. In the present case, Mr. Yorov’s right to
the assistance of counsel was reportedly violated by the refusal to allow him to speak with
an attorney, the intimidation of his attorneys, and the refusal to grant sufficient time to the
defence to familiarize itself with the case. In addition, the authorities actively prevented the
defence from gaining access to the prosecution’s materials, and the court impeded the
defence to fully present its case.
44.
The source also refers to article 14 (1) of the Covenant and article 10 of the
Universal Declaration of Human Rights, whereby an individual has the rights to equality of
arms before the courts and to a fair and public hearing by a competent, independent and
impartial tribunal established by law. In Mr. Yorov’s case, these rights were allegedly
violated because his trials were partially or fully closed. The source adds that the court
system in Tajikistan is not independent but rather controlled by the executive branch, so the
courts defer to the prosecution. Furthermore, following Mr. Yorov’s reading of a poem at
trial, the judge, the prosecutor and two jury members alleging insult were treated as victims,
provided evidence against Mr. Yorov, for use in a future trial, without recusing themselves
in the first trial.
45.
According to the source, the Government also violated Mr. Yorov’s right to the
presumption of innocence, as protected by article 14 (2) of the Covenant, article 11 (1) of
the Universal Declaration of Human Rights and principle 36 (1) of the Body of Principles.
Although this right requires that an accused be treated as innocent, the Government treated
Mr. Yorov as if his guilt was a foregone conclusion. In particular, the Government
publicized Mr. Yorov as guilty before his conviction, presented him to the court in a
manner that suggested his guilt, held his trial within a detention centre, criminally convicted
Mr. Yorov on the basis of poor-quality evidence and refused to afford him fair trial rights.
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46.
The Government reportedly also violated article 14 (3) (e) of the Covenant by not
permitting Mr. Yorov to fully challenge the Government’s case against him and prohibiting
him from presenting his own witnesses and evidence.
47.
The source stresses that prisoners have the right to human dignity and to not be
tortured or subjected to cruel, inhuman or degrading treatment under articles 7, 10 (1) and
14 (3) (g) of the Covenant, article 5 of the Universal Declaration of Human Rights and
articles 1, 2 and 16 (1) of the Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment. In the present case, the beatings, abuse, prolonged
solitary confinement and prison conditions endured by Mr. Yorov constitute violations of
these rights.
48.
The source further submits that the appellate court, reviewing the sentence from Mr.
Yorov’s first trial, ignored the allegations or facts of his case and upheld the lower court’s
verdict without engaging in a meaningful review, in violation of Mr. Yorov’s right to
review under article 14 (5) of the Covenant.
49.
The source also notes that several charges raised against Mr. Yorov in the first and
third trials related to an alleged failure to meet contractual obligations. These should have
been tried in a civil court, not a criminal one, and any imprisonment due to these claims
violates the prohibition of imprisonment from breach of contractual obligation under article
11 of the Covenant.
Category V
50.
The source further submits that Mr. Yorov’s detention is arbitrary under category V
because the government authorities detained him due to its discriminatory intent against
him as a human rights lawyer and a perceived supporter of his clients’ causes.
51.
The source refers to article 7 of the Universal Declaration of Human Rights and
articles 2 (1) and 26 of the Covenant, which enshrine an individual’s right to freedom from
discrimination, without distinction of any kind, such as ethnic or social origin. Although the
status of lawyers is not an explicitly enumerated ground, lawyers have been treated by
international instruments (such as the Basic Principles on the Role of Lawyers) as a distinct
class in need of particular protections because of their role in upholding fundamental
human rights of individuals. Furthermore, the Declaration on Human Rights Defenders
guarantees the right to offer and provide professionally qualified legal assistance in defence
of human rights, and the right to the lawful exercise of the occupation of profession of
human rights defender.
52.
In the present case, Mr. Yorov’s arrest, detention and treatment took place in the
context of the Government’s relentless attack on the legal profession and on those lawyers
representing members of the opposition. The interrogators’ insistence that Mr. Yorov cease
his representation of opposition leaders, the Government’s inducements aimed at his family
with the same demand and his arrest shortly after he made a public statement in relation to
the mistreatment of his client provides evidence of the Government targeting him as a
human rights lawyer. The Government’s pattern of targeting Mr. Yorov and his law firm,
including past fabricated charges, the evolving nature of the charges and continued abuse,
clearly demonstrates that prejudicial hostility towards Mr. Yorov, resulting from his status
and his perceived identity, lay at the root of his arrest, trial and conviction, in violation of
his right to non-discrimination before the law.
Response from the Government
53.
On 15 November 2018, the Working Group transmitted the allegations from the
source to the Government under its regular communications procedure, requesting the
Government to provide, by 14 January 2019, detailed information about Mr. Yorov’s
current situation and to clarify the legal provisions justifying his continued detention, as
well as its compatibility with the State’s obligations under international human rights law,
in particular with regard to the treaties ratified by Tajikistan. The Working Group called
upon the Government to ensure Mr. Yorov’s physical and mental integrity.
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54.
On 18 January 2019, the Working Group received a late reply from the Government,
and regrets that an extension of the time was not requested, as provided for in the methods
of work. The reply could not be accepted as if presented within the time limit. In
accordance with paragraph 16 of its methods of work, the Working Group will render its
opinion based on all the information it has obtained.
Discussion
55.
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 (A/HRC/19/57,
para. 68). The Government has not challenged the prima facie credible allegations made by
the source.
56.
The source submits that the arrest and detention of Mr. Yorov is arbitrary and falls
under categories I, II, III and V. These will be examined in turn.
Category I
57.
The source submits that the arrest and subsequent detention of Mr. Yorov fall under
category I, as the arrest and the searches of his home and office were carried out without
warrants and he was not presented before a judge until three days after his arrest. Even in
its late response, the Government did not address these allegations, but simply stated that
“all appropriate procedures were followed”.
58.
The Working Group notes that Mr. Yorov was arrested on 28 September 2015 and
was not presented with an arrest warrant. As has been previously stated, for a deprivation of
liberty to have a legal basis, it is not sufficient that there be a law that may authorize the
arrest. The authorities must invoke that legal basis and apply it to the circumstances of the
case through an arrest warrant.1 In the present case, the authorities failed to do so, violating
the rights of Mr. Yorov under article 9 (1) of the Covenant.
59.
Moreover, Mr. Yorov was not provided with any information regarding the reasons
for his arrest or charges against him until he was presented before the court three days after
his arrest, and no charges were notified until some 10 days after the arrest. Article 9 (2) of
the Covenant requires that anyone who is arrested is not only promptly informed of the
reasons at the time of arrest but also promptly informed of any charges against them. As
explained by the Human Rights Committee in its general comment No. 35 (2014) on liberty
and security of person, the obligation encapsulated in article 9.2 has two elements:
information about the reasons for arrest must be provided immediately upon arrest, and
there must be prompt information about the charges provided thereafter.
60.
It is true that the requirement of prompt information about the charges is not to be
equated with the requirement to provide information at the time of the arrest.2 However, in
the present case, Mr. Yorov was arrested on 28 September 2015, which was not a public
holiday. The Government has chosen not to explain the delay of three days to inform Mr.
Yorov of reasons for his arrest, which should have been immediately provided, and why it
took some 10 days to inform Mr. Yorov of the charges against him. The right to be
promptly informed of charges concerns notice of criminal charges and, as the Human
Rights Committee has noted, that right “applies in connection with ordinary criminal
prosecutions and also in connection with military prosecutions or other special regimes
directed at criminal punishment”.3 The Working Group therefore finds that there has been a
breach of article 9 (2) of the Covenant.
61.
Furthermore, to establish that detention is legal, anyone detained has the right to
challenge the legality of their detention before a court, as provided for by article 9 (4) of the
Covenant. The Working Group recalls that, according to the United Nations Basic
1 Opinions No. 75/2017, No. 66/2017, No. 46/2018, No. 35/2018 and No. 79/2018.
2 See Human Rights Committee general comment No. 35, para. 30.
3 Ibid., para. 29.
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Principles and Guidelines on Remedies and Procedures on the Right of Anyone Deprived of
their Liberty to Bring Proceedings before a Court, the right to challenge the lawfulness of
detention before a court is a self-standing human right, which is essential to preserve
legality in a democratic society (A/HRC/30/37, paras. 2–3). This right is, in fact, a
peremptory norm of international law (ibid., para. 11). It applies to all situations of
deprivation of liberty, including not only criminal detention but also detention under
administrative and other laws, such as military, security and counter-terrorism detention,
involuntary confinement in medical or psychiatric facilities, migration detention, detention
for extradition, house arrest, detention for vagrancy or drug addiction and detention of
children for educational purposes (ibid., para. 47 (a)). Moreover, it also applies irrespective
of the place of detention or the legal terminology used in the legislation. Any form of
deprivation of liberty on any ground must be subject to effective oversight and control by
the judiciary (ibid., para. 47 (b)).
62.
The source submits that Mr. Yorov was not brought before the judge until three days
after his arrest. In its late reply, the Government simply stated that Mr. Yorov was brought
before the judge after the period of time prescribed by law for initial detention had passed.
The Working Group cannot accept such an argument, as its mandate is not to ascertain
whether the Tajik authorities complied with the national legislation, but rather to examine
whether these actions were compatible with the State’s international obligations. Indeed,
the Government itself, in its late reply, notes that its authorities are bound by the
international treaties and agreements to which Tajikistan is a party.
63.
The Working Group considers that judicial oversight of detention is a fundamental
safeguard of personal liberty (ibid., para. 3), essential in ensuring that detention has a legal
basis. As the Human Rights Committee noted in its general comment No. 35, 48 hours is
ordinarily sufficient to transport the individual and to prepare for the judicial hearing; any
delay must remain exceptional and properly justified. This was not the case for Mr. Yorov;
the Working Group therefore finds a breach of article 9 of the Covenant.
64.
Moreover, in the present case, Mr. Yorov was held in detention for three days before
being brought before a judge. During that time, he was prevented from challenging the
legality of his detention. Without the judicial control of the legality of the detention, the
detention cannot be assumed to have a legal basis. The Working Group reiterates that the
right to challenge the legality of detention belongs to everyone; this right was denied to Mr.
Yorov for the first three days of his detention, in breach of article 9 (4) of the Covenant.
65.
In order to ensure the effective exercise of the right to challenge the legality of
detention, detainees should have access, from the moment of arrest, to legal assistance of
their own choosing, as stipulated in the Basic Principles and Guidelines (ibid., paras. 12–
15). This was denied to Mr. Yorov, with consequent adverse impact on his ability to
exercise his right to challenge the legality of his detention, in breach of article 9 (4) of the
Covenant.
66.
According to article 9 (1) of the Covenant, no one may be deprived of liberty except
on such grounds and in accordance with such procedure as established by law. In the
present case, Mr. Yorov’s private residence and office were searched without a warrant and
various items, including computers and documents, seized by the authorities. The
confiscation of Mr. Yorov’s property without a search warrant was particularly serious, as it
violated lawyer-client confidentiality. 4 Accordingly, the Working Group finds that Mr.
Yorov’s right under article 9 (1) of the Covenant was violated.
67.
It is a well-established norm of international law that pretrial detention should be the
exception, not the rule, and that it should be ordered for as short a time as possible.5 Article
9, paragraph 3, of the Covenant sets forth two cumulative obligations, namely, to be
promptly brought before a judge within the first days of the deprivation of liberty, and to
4 See opinions No. 36/2018, paras. 39–40, No. 79/2018 and No. 83/2018.
5 See opinions No. 28/2014, No. 49/2014 and No. 57/2014. See also A/HRC/19/57, paras. 48–58,
A/HRC/25/60/Add.1, para. 84, A/HRC/30/19, E/CN.4/2004/56, para. 49, Zhanna Kovsh v. Belarus
(CCPR/C/107/D/1787/2008), CAT/C/TGO/CO/2, para. 12 and CCPR/C/TUR/CO/1, para. 17.
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have a judicial decision rendered without undue delay, in the absence of which the person is
to be released (A/HRC/19/57, para. 53).
68.
The above provision is completed by the second part of article 9 (3), according to
which it should not be the general rule “that persons awaiting trial are to be detained in
custody, but release may be subject to guarantees to appear for trial, at any other stage of
the judicial proceedings, and, should occasion arise, for execution of the judgement”.
Liberty is recognized as a principle and detention as an exception in the interests of justice.
69.
The provisions contained in article 9 (3) of the Covenant may be summarized as
follows: any detention must be exceptional and of short duration, while release may be
accompanied by measures intended only to ensure representation of the defendant in
judicial proceedings (ibid., para. 56).
70.
The Working Group refers to general comment No. 35 of the Human Rights
Committee, according to which subjecting defendants to pretrial detention should not be the
general practice. Detention pending trial should be based on an individualized
determination that it is reasonable and necessary, taking into account all circumstances, for
such purposes as to prevent flight, interference with evidence or the recurrence of crime.
The relevant factors should be specified in law and should not include vague and expansive
standards such as “public security”. Pretrial detention should not be mandatory for all
defendants charged with a particular crime, without regard to individual circumstances.
71.
In the case of Mr. Yorov, the Working Group notes that, in its late response, the
Government chose not to examine the reasons leading to the decision to remand Mr. Yorov
to custody pending his trial. The source had alleged that, during the pretrial detention
hearing, no evidence of him being a flight risk or likely to falsify evidence, influence
witnesses or destroy documents was presented. The Working Group therefore concludes
that the pretrial detention of Mr. Yorov breached article 9 (3) of the Covenant.
72.
The source has also alleged that the conviction of Mr. Yorov, for failure to represent
his clients properly, breaches his rights under article 11 of the Covenant, as several charges
brought against Mr. Yorov in the first and third trials related to an alleged failure to meet
his contractual obligations. According to the source, these should have been tried as a civil
suit, not a criminal case, and therefore any imprisonment resulting from these claims
violates Mr. Yorov’s rights under article 11 of the Covenant. The Working Group observes
that the Government has failed to address this allegation.
73.
Article 11 of the Covenant is a non-derogable right; in the view of the Working
Group, any deprivation of liberty for inability to fulfil a contractual obligation will always
be arbitrary.6 The Working Group emphasizes that, in the present case, the charges of
alleged failure to represent clients indeed stemmed from private contracts rather than any
statutory obligation.7
74.
If indeed Mr. Yorov failed to represent his clients properly, the matter should have
been addressed through the professional misconduct proceedings of the bar association or a
similar body, or pursued through civil litigation for breach of contract. The Working Group
also observes that, in its late response, the Government made no attempt to explain why the
alleged breaches of private contracts would be considered criminal offences. The Working
Group therefore finds that there has been a violation of article 11 of the Covenant.
75.
The source has also claimed that Mr. Yorov was retroactively convicted of a crime
under article 137 of the Criminal Code; this provision was adopted seven months after Mr.
Yorov allegedly committed the crime of publicly insulting the President. The Working
Group observes that the Government has failed to address this allegation.
76.
The Working Group notes that article 15 of the Covenant guards against ex post
facto application of criminal law and, in the absence of any submissions from the
Government, must accept the submissions of the source. The Working Group therefore
6 See opinions No. 31/2001 and No. 38/2013.
7 Liberto Calvet Ràfols v. Spain (CCPR/C/84/D/1333/2004), para. 6.4.
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concludes that the conviction of Mr. Yorov under article 137 of the Criminal Code was in
violation of article 15 (1) of the Covenant.
77.
Considering that Mr. Yorov was detained without an arrest warrant, that his private
residence and office were subjected to searches without a warrant, that no formal charges
were brought against him for some 10 days, that he was effectively prevented from
exercising his right to challenge the legality of detention and since his pretrial detention
was imposed as a rule, and that he was convicted for inability to fulfil a contractual
obligation, and considering also that one of Mr. Yorov’s convictions breached the
prohibition of ex post facto application of criminal law, the Working Group concludes that
Mr. Yorov’s arrest and detention are arbitrary and fall under category I.
Category II
78.
The source further submits that the arrest and detention of Mr. Yorov resulted from
his legitimate exercise of his rights to freedom of expression, association and political
participation, protected by articles 19 (2), 22 (1) and 25 (a) of the Covenant and 19 and 20
(1) of the Universal Declaration of Human Rights. In its late reply, the Government merely
rejects those submissions, stating that Mr. Yorov was not prosecuted and sentenced for his
political views or expressions but rather because of a number of criminal acts.
79.
The Working Group notes, however, that the Government failed to specify what Mr.
Yorov had actually done that could have amounted to such crimes, as no description of any
actions undertaken by him that could be construed as criminal activity has been provided.
The Working Group observes the similarity of the Government’s late response in this case
to the response that the Government submitted to the Working Group recently in another
case.8 The Working Group also observes the similarity of the fact pattern between the
present case and previous one.
80.
The Working Group notes that the Human Rights Committee, in its general
comment No. 34 (2011) on the freedoms of opinion and expression, stated that such rights,
as enshrined in article 19 of the Covenant, are indispensable conditions for the full
development of the person and essential for any society and, in fact, constitute a
foundational stone for every free and democratic society.
81.
Also in its general comment No. 34, the Committee further stated that the freedom
of expression includes the right to seek, receive and impart information and ideas of all
kinds, regardless of frontiers; this includes the expression and receipt of communications of
every form of idea and opinion, capable of transmission to others, including political
opinions. Moreover, the permitted restrictions to that right may relate either to respect of
the rights or reputations of others, or to the protection of national security or of public order
or of public health or morals. The Committee went on to stipulate that restrictions are not
allowed on grounds not specified in paragraph 3 of the general comment, even if such
grounds would justify restrictions to other rights protected in the Covenant. Restrictions
must be applied only for those purposes for which they were prescribed, and must directly
relate to the specific need on which they are predicated. It should be noted that article 21 of
the Covenant permits restrictions to the right of assembly on the same three grounds.
82.
In the present case, the Government has chosen not to invoke any of the permitted
restrictions; it has cited a number of criminal acts allegedly committed by Mr. Yorov,
without any explanation of the actions that led to those violations. It is quite clear to the
Working Group that the basis for the arrest and subsequent detention of Mr. Yorov was in
fact his exercise of freedom of expression and freedom of assembly. The Working Group
observes that those allegations follow the pattern of harassment to which Mr. Yorov, and
others, have been subjected for years, even prior to the events of September 2015.9
83.
While the freedom of expression and freedom of assembly are not absolute rights,
the Human Rights Committee clarified in its general comment No. 34 that, when a State
party imposes restrictions on the exercise of freedom of expression, these may not put in
8 Opinion No. 2/2018.
9 Ibid.
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jeopardy the right itself. Moreover, such restrictions cannot justify the suppression of any
advocacy for multiparty democracy, democratic tenets or human rights.
84.
Moreover, the Working Group also finds that the right of Mr. Yorov to take part in
the conduct of public affairs, pursuant to article 25 of the Covenant, has been violated since
his arrest was directly linked to his work as a lawyer and defender of political opponents of
the Government. The Working Group recalls that the Human Rights Committee, in its
general comment No. 25 (1996) on participation in public affairs and the right to vote,
emphasized that citizens also take part in the conduct of public affairs by exerting influence
through public debate and dialogue with their representatives or through their capacity to
organize themselves. That participation is supported by ensuring freedom of expression,
assembly and association. Noting the essential link between the rights to freedom of
expression, assembly and association, the Committee also emphasizes that the right to
freedom of association, including the right to form and join organizations and associations
concerned with political and public affairs, is an essential adjunct to the rights protected by
article 25. The Working Group therefore also finds the arrest of Mr. Yorov to be the result
of his exercise of rights under article 25 of the Covenant.
85.
The Working Group therefore concludes that Mr. Yorov was detained because of the
exercise of his freedom of expression, freedom of assembly and his right to take part in the
conduct of public affairs, falling under category II. In making this finding, the Working
Group is mindful of the similarities of the present case with the case that it examined in its
opinion 2/2018, and also with the findings of the Committee against Torture in its
concluding observations on Tajikistan (CAT/C/TJK/CO/3, paras. 21–22), which
specifically mention the case of Mr. Yorov.
Category III
86.
Given its finding that the deprivation of liberty of Mr. Yorov is arbitrary under
category II, the Working Group emphasizes that no trial should have been held.
Nonetheless, the trial was held, and the source has submitted that the detention of Mr.
Yorov was arbitrary and falls under category III, given the violation of a number of fair trial
guarantees.
87.
The Working Group observes that the Government has failed to respond to any of
the above specific allegations, except for a general statement, made in its late reply, that
numerous lawyers represented Mr. Yorov at various trials. The Working Group cannot
accept such a vague response to the specific and very serious allegations made by the
source. The Working Group therefore accepts that Mr. Yorov was denied access to a lawyer
for the first two months of his detention, with the exception of the pretrial detention hearing
on 1 October 2015; that he was unable to communicate freely with his lawyers, and that his
lawyers were subjected to various forms of intimidation, leading one of them to seek
asylum abroad and resulting into Mr. Yorov’s interests being represented in the court by his
wife, who is not a lawyer. The Working Group is mindful that Mr. Yorov was charged with
very serious offences, with very heavy penalties, and that he was ultimately sentenced to a
lengthy prison term. The sentencing of Mr. Yorov in such circumstances is in blatant
disregard of the guarantees enshrined in article 14 (3) (b) and (d) of the Covenant.
88.
The Working Group also expresses its concern at the allegations of harassment
sustained by the lawyers of Mr. Yorov, and stresses that it is the legal and positive duty of
the State to protect everyone on its territory or under its jurisdiction against any human
rights violation and to provide remedies whenever a violation is perpetrated. The Working
Group especially recalls that, according to the Basic Principles and Guidelines, legal
counsel should be able to carry out its functions effectively and independently, free from
fear of reprisal, interference, intimidation, hindrance or harassment. In the view of the
Working Group, this also constitutes a further violation of article 14 (3) (b) of the Covenant.
89.
Furthermore, the Government has not responded to the submission made by the
source that neither Mr. Yorov nor his lawyers were notified of the charges for some 10 days.
Such a situation cannot be reconciled with article 14 (3) (a) of the Covenant, which requires
prompt and detailed notification of charges. The Working Group therefore finds that this
provision has been violated.
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90.
The Working Group must also accept the allegations made by the source that the
court denied the requests of Mr. Yorov for sufficient time to familiarize with the case.
Article 14 (3) (b) of the Covenant requires that everyone charged with a criminal offence be
given adequate time and facilities to prepare a defence. The Working Group notes that this
guarantee was not observed in the present case, and that the time given to defence was
insufficient to study charges, particularly in such a complex case where the accused faced
more than a dozen charges and a lengthy term of imprisonment. The Government has failed
to present any reasons why the defence’s requests for further time were denied. The
Working Group therefore finds a further breach of article 14 (3) (b).10
91.
The Working Group also notes the failure of the Government to explain the reasons
for the confidentiality imposed on Mr. Yorov’s case files. The Government only notes that
the prosecutor shared the case materials with the defence counsel as stipulated by law. The
Working Group cannot accept such a vague reply. As it has already stated, every individual
deprived of liberty has the right to have access to material relating to detention or presented
to the court by the State in order to preserve the equality of arms. 11 The disclosure of
information may, however, be restricted if necessary and proportionate in pursuing a
legitimate aim, such as protecting national security or if the State has demonstrated that less
restrictive measures would be unable to achieve the same result, such as providing redacted
summaries that clearly point to the factual basis for the detention.12 In the present case, the
Government has failed to demonstrate as much; the Working Group therefore finds that Mr.
Yorov was denied the right to equality of arms, in further breach of article 14 (3) (b) of the
Covenant.
92.
Moreover, Mr. Yorov was denied the possibility to examine any witnesses or
evidence in his defence. As the Human Rights Committee stated in its general comment No.
32 (2007) on the right to equality before courts and tribunals and to a fair trial, there is a
strict obligation to respect the right to have witnesses admitted that are relevant for the
defence and to be given a proper opportunity to question and challenge witnesses against
them at some stage of the proceedings. In the present case, that right was denied to Mr.
Yorov; such a blanket refusal bears the hallmarks of serious denial of equality of arms and
is in fact a violation of article 14 (3) (e) of the Covenant.
93.
The Government has also failed to address the submissions made by the source that
Mr. Yorov’s right to be presumed innocent was denied. The Working Group is mindful of
the article that was published on the website of the Ministry of the Interior that an
“attorney-fraudster” had been detained, alluding to Mr. Yorov; that Mr. Yorov was
presented to the court in handcuffs, and that one of his trials was held in the detention
facility. In this regard, the Working Group observes that the Human Rights Committee, in
its general comment No. 32, also explained that all public authorities have a duty to refrain
from prejudging the outcome of a trial, for example, by abstaining from making public
statements affirming the guilt of the accused. Defendants should normally not be shackled
or kept in cages during trials or otherwise presented to the court in a manner indicating that
they may be dangerous criminals. The media should avoid news coverage undermining the
presumption of innocence.
94.
The Working Group notes that, in this particular case, it was the State media that
reported on the alleged guilt of Mr. Yorov. It also notes that the Government has failed to
provide any explanation of what warranted the need to keep Mr. Yorov handcuffed during
his court appearance, and why was it necessary to hold one of his trials within the detention
facility. The Working Group therefore concludes that there has been a breach of article 14
(2) of the Covenant.
95.
Furthermore, the Working Group observes that the Government has simply argued
that the investigation, as well as the court hearing, was conducted openly. Mr. Yorov was,
however, subject to three trials; the Working Group cannot accept such a general response,
10 See Sawyers and McLean v. Jamaica (CCPR/C/41/D/226/1987), Sawyers and McLean v. Jamaica
(CCPR/C/41/D/256/1987) and Peter Grant v. Jamaica (CCPR/C/56/D/597/1994).
11 A/HRC/30/37, principle 12 and guideline 13.
12 Ibid., guideline 13, paras. 80–81. See also opinion No. 18/2018.
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submitted late by the Government, to specific allegations. In its general comment No. 32,
the Human Rights Committee further clarified that article 14, paragraph 1 acknowledges
that courts have the power to exclude all or part of the public for reasons of morals, public
order (ordre public) or national security in a democratic society, or when the interest of the
private lives of the parties so requires, or to the extent strictly necessary in the opinion of
the court in special circumstances where publicity would be prejudicial to the interests of
justice. Apart from such exceptional circumstances, a hearing must be open to the general
public, including members of the media, and must not, for instance, be limited to a
particular category of persons.
96.
The Working Group notes that Mr. Yorov’s case clearly did not fall into any of the
prescribed exceptions to the general obligation of public trials under article 14 (1) of the
Covenant, and that the Government had not invoked any of those exceptions to justify the
closed trial. The Working Group thus finds a violation of article 14 (1) of the Covenant.
97.
The source submits a twofold argument that Mr. Yorov did not receive a trial by an
impartial and independent tribunal under article 14 of the Covenant, another allegation only
summarily dismissed by the Government in its late reply. The Working Group is unable to
accept the blanket submission by the source alleging that “the court system in Tajikistan is
not independent and is controlled by the executive branch and, as such, the courts defer to
the prosecution” without a specific explanation of how this manifested in Mr. Yorov’s trials.
98.
The Working Group does, however, accept the allegation made by the source that,
following Mr. Yorov’s reading of a poem at trial, the judge, the prosecutor and two jury
members were treated as victims of insult, provided evidence against Mr. Yorov for use in a
future trial and did not recuse themselves from the first trial. In this regard, the Working
Group recalls that the Human Rights Committee, in its general comment No. 32, stated that
the requirement of competence, independence and impartiality of a tribunal is an absolute
right that is not subject to any exception. It further observed that the requirement of
impartiality has two aspects: first, judges must not allow their judgment to be influenced by
personal bias or prejudice, nor harbour preconceptions about the particular case before them,
nor act in ways that improperly promote the interests of one of the parties to the detriment
of the other; and second, the tribunal must also appear to a reasonable observer to be
impartial. For instance, a trial substantially affected by the participation of a judge who,
under domestic statutes, should have been disqualified cannot normally be considered to be
impartial.
99.
It is clear for the Working Group that those who have been accorded the status of a
victim in another case, involving the same defendant, cannot also serve as judges in the first
case. The allegations by the source present a clear conflict of interest for the judge, the
prosecutor and the two jury members which, therefore, constitutes a breach of article 14 (1)
of the Covenant.
100.
The Working Group also notes the Government’s failure to address the submissions
made by the source concerning the appeal trial of Mr. Yorov. The Working Group observes
that article 14 (5) of the Covenant enshrines the right of anyone convicted of a crime to
have their sentence reviewed by a higher tribunal. The requirements of independence and
impartiality of the tribunal, embodied in article 14 (1) of the Covenant, apply also to the
appeal process, which cannot be satisfied by a review carried out by an executive.
Moreover, article 14, paragraph 5 imposes on States a duty substantially to review
conviction and sentence both as to sufficiency of the evidence and of the law,13 which can
only be satisfied by a meaningful review of the whole case. This did not take place in the
case of Mr. Yorov. The Working Group therefore concludes there has been a violation of
article 14 (5) of the Covenant.
101.
The Working Group expresses its serious concern at the allegations that Mr. Yorov
was beaten during his interrogation after arrest, and again after he was sentenced in 2017.
In the view of the Working Group, the treatment described by the source reveals a prima
13 Yuri Bandajevsky v. Belarus (CCPR/C/86/D/1100/2002), para. 10.13. See also opinions No. 28/2018
and No. 76/2018.
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facie breach of the absolute prohibition of ill-treatment and torture, which is a peremptory
norm of international law, as well as of the Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment, the Body of Principles and the Standard
Minimum Rules for the Treatment of Prisoners.
102.
With regard to the beatings following Mr. Yorov’s arrest, in 2015, the Working
Group notes that the use of confessions extracted through ill-treatment that is tantamount if
not equivalent to torture is a breach of article 14 (3) (g) of the Covenant and may also
constitute a violation of the State’s obligations under article 15 of the Convention against
Torture. Furthermore, the Body of Principles specifically prohibits taking undue advantage
of the situation of detention to compel confession or incriminating statements. 14 The
Working Group reiterates the concluding observations of the Committee against Torture in
relation to Tajikistan, which specifically mention the case of Mr. Yorov (CAT/C/TJK/CO/3,
paras. 21–22).
103.
The Working Group also notes the summary dismissal by the Government of the
allegations made by the source concerning the denial to Mr. Yorov of contact with his
family, and the acts of intimidation against them, in violation of principle 19 of the Body of
Principles.
104.
Lastly, the Working Group also notes that, since his detention, Mr. Yorov has been
subjected to solitary confinement on a number of occasions. The Government has provided
only a vague reply to this allegation, noting that, owing to a gross breach of internal
regulations, Mr. Yorov had been placed in solitary confinement for up to 15 days. The
Working Group observes that the Government had the opportunity but failed to explain
what those breaches were, or indeed the safeguards that were observed by the detaining
authorities to ensure that the solitary confinement of Mr. Yorov would not be arbitrary.
105.
The Working Group has held that the imposition of solitary confinement must be
accompanied by certain safeguards.15 It must only be used in exceptional cases, as a last
resort, for as short a time as possible, subject to independent review and authorized by a
competent authority. These conditions do not appear to have been observed in the present
case. Prolonged solitary confinement, in excess of 15 consecutive days, is prohibited under
rules 43 (1) (b) and 44 of the Standard Minimum Rules for the Treatment of Prisoners. In
the present case, the Working Group finds that Mr. Yorov has been placed in solitary
confinement for 15 days repeatedly, without any proper justification. The Working Group
therefore concludes that there has been a breach of these provisions.
106.
In sum, the Working Group finds that the trials of Mr. Yorov were carried out in
total disregard for the guarantees enshrined in article 14 of the Covenant, being of such
gravity as to give the deprivation of liberty of Mr. Yorov an arbitrary character, under
category III.
Category V
107.
Lastly, the source alleges that Mr. Yorov’s arrest and detention also fall under
category V, given that the Government authorities detained him in part because of its
discriminatory intent against him, as a human rights lawyer and a perceived supporter of his
clients’ causes. The Government has simply stated that Mr. Yorov’s actions amounted to
serious crimes, and that this was the only reason for his prosecution, denying any political
reasons for his arrest, detention and conviction.
108.
The Working Group noted that the present case is strikingly similar to another case
that it considered a year ago, with facts, allegations and even the Government’s response
following the same pattern. Moreover, the Working Group also notes that, in its concluding
observations on Tajikistan, the Committee against Torture expressed deep concern at
allegations that individuals who complained of torture, members of their families, human
rights defenders, including lawyers representing victims of torture, and journalists reporting
14 Opinions No. 48/2016, No. 3/2017, No. 6/2017 and No. 29/2017.
15 Opinion No. 83/2018.
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on allegations of torture frequently faced reprisals by officials of the State party, referring
to the case of Mr. Yorov specifically (CAT/C/TJK/CO/3, paras. 21–22).
109.
The Working Group therefore considers that there is a distinct pattern in the attitude
of the authorities towards those who belong to opposition parties or represent their interests,
as is the case of Mr. Yorov. The Working Group considers that this distinction
discriminates on the basis of political or other opinion, in a manner that ignores the equality
of human rights, a prohibited ground of discrimination under articles 2 (1) and 26 of the
Covenant. The Working Group considers that the facts in the present case disclose a
violation under category V.
Disposition
110.
In the light of the foregoing, the Working Group renders the following opinion:
The deprivation of liberty of Buzurgmehr Yorov, being in contravention of articles 2,
3, 7, 9, 10, 11, 12, 19, 20 and 21 of the Universal Declaration of Human Rights and
articles 2 (1), 9 (1), (2), (3) and (4), 14 (1), (2), (3) (b), (d), (e) and (g) and (5), 15,
19, 21, 25 and 26 of the International Covenant on Civil and Political Rights, is
arbitrary and falls within categories I, II, III and V.
111.
The Working Group requests the Government of Tajikistan to take the steps
necessary to remedy the situation of Mr. Yorov without delay and to bring it into
conformity with the relevant international norms, including those set out in the Universal
Declaration and the Covenant.
112.
The Working Group considers that, taking into account all the circumstances of the
case, the appropriate remedy would be to release Mr. Yorov immediately, and to accord
him an enforceable right to compensation and other reparations, in accordance with
international law.
113.
The Working Group urges the Government to ensure a full and independent
investigation of the circumstances surrounding the arbitrary deprivation of liberty of Mr.
Yorov and to take appropriate measures against those responsible for the violation of his
rights.
114.
In accordance with paragraph 33 (a) of its methods of work, the Working Group
refers the present case to the Special Rapporteur on the independence of judges and lawyers
and to the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or
punishment for appropriate action.
115.
The Working Group requests the Government to disseminate the present opinion
through all available means and as widely as possible.
Follow-up procedure
116.
In accordance with paragraph 20 of its methods of work, the Working Group
requests the source and the Government to provide it with information on action taken in
follow-up to the recommendations made in the present opinion, including:
(a)
Whether Mr. Yorov has been released and, if so, on what date;
(b)
Whether compensation or other reparations have been made to Mr. Yorov;
(c)
Whether an investigation has been conducted into the violation of Mr.
Yorov’s rights and, if so, the outcome of the investigation;
(d)
Whether any legislative amendments or changes in practice have been made
to harmonize the laws and practices of Tajikistan with its international obligations in line
with the present opinion;
(e)
Whether any other action has been taken to implement the present opinion.
117.
The Government is invited to inform the Working Group of any difficulties it may
have encountered in implementing the recommendations made in the present opinion and
whether further technical assistance is required, for example through a visit by the Working
Group.
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17
118.
The Working Group requests the source and the Government to provide the above-
mentioned information within six months of the date of transmission of the present opinion.
The Working Group, however, 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.
119.
The Working Group recalls that the Human Rights Council has encouraged all
States to cooperate with the Working Group and has 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 30 April 2019]
16 See Human Rights Council resolution 33/30, paras. 3 and 7.