opencaselaw.ch

A/HRC/WGAD/2019/66

Opinion no. 66/2019 concerning Saidumar Husaini, Muhammadali Faiz-Muhammad, Rahmatulloi Rajab, Zubaidulloi Roziq, Vohidkhon Kosidinov, Kiyomiddin Avazov, Abduqahar Davlatov, Hikmatulloh Sayfulloza, Sadidin Rustamov, Sharif Nabiev and Abdusamat Ghayratov (Tajikistan)

UNO-Arbeitsgruppe über willkürliche Inhaftierung (WGAD) · 2019-11-22 · en UN

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.20-01464(E)



Human Rights Council

Working Group on Arbitrary Detention

Opinions adopted by the Working Group on Arbitrary

Detention at its eighty-sixth session, 18–22 November 2019

Opinion No. 66/2019 concerning Saidumar Husaini, Muhammadali

Faiz-Muhammad, Rahmatulloi Rajab, Zubaidulloi Roziq, Vohidkhon

Kosidinov, Kiyomiddin Avazov, Abduqahar Davlatov, Hikmatulloh

Sayfulloza, Sadidin Rustamov, Sharif Nabiev and Abdusamat

Ghayratov (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 42/22.

2.

In accordance with its methods of work (A/HRC/36/38), on 19 July 2019 the

Working Group transmitted to the Government of Tajikistan a communication concerning

Saidumar Husaini, Muhammadali Faiz-Muhammad, Rahmatulloi Rajab, Zubaidulloi Roziq,

Vohidkhon Kosidinov, Kiyomiddin Avazov, Abduqahar Davlatov, Hikmatulloh Sayfulloza,

Sadidin Rustamov, Sharif Nabiev and Abdusamat Ghayratov. The Government submitted a

late response on 2 October 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,

United Nations

A/HRC/WGAD/2019/66

General Assembly

Distr.: General

31 January 2020

Original: English

A/HRC/WGAD/2019/66

2

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.

The source alleges the arbitrary detention and conviction of 11 members of the

Islamic Renaissance Party of Tajikistan. On 16 September 2015, officers from the State

Committee for National Security arrested all 11 individuals, in addition to other 2 members

of the Party, without arrest warrants. After being held in pretrial detention, on 2 June 2016,

the Chief Military Judge convicted them in a joint trial and handed down sentences ranging

from 14 years to life imprisonment. The 11 detained members of the Islamic Renaissance

Party are:

(a)

Saidumar Husaini, born in 1961, first Deputy Chair of the Party and member

of its Supreme Political Council. He served as a member of the parliament of Tajikistan

from March 2010 to March 2015. Mr. Husaini was arrested by uniformed officers of the

State Committee for National Security at Dushanbe airport. His family spent the following

days attempting to locate him, visiting police stations and other facilities, but the authorities

refused to disclose any information. Approximately four to five days after his arrest, the

Government informed his family of his whereabouts, however they were not allowed to see

him at that time. Mr. Husaini was sentenced to life imprisonment in maximum security;

(b)

Muhammadali Faiz-Muhammad, born in 1962, a member of the Supreme

Political Council of the Party. He was reportedly arrested by officers of the State

Committee for National Security while driving to his home. No information was provided

regarding the legal basis for his arrest or about the charges against him. His family did not

know where he was or that he had been arrested, until 10 days later. When the family was

informed of the arrest, they were not allowed to see him. Mr. Faiz-Muhammad was

allegedly beaten, interrogated and tortured. He was sentenced to 23 years’ imprisonment;

(c)

Rahmatulloi Rajab, born in 1958, a member of the Supreme Political Council

of the Party. He was arrested at his home by officers of the State Committee for National

Security dressed in civilian clothes. The officers informed his family that they needed to

talk with him and that he would return shortly, but he never did. Thirty minutes after the

arrest, 10 additional officers arrived to search his home without a warrant. According to the

source, Mr. Rajab was badly beaten and tortured for three consecutive days after the arrest.

He was sentenced to 28 years’ imprisonment;

(d)

Zubaidulloi Roziq, born in 1946, a member of the Supreme Political Council

of the Party. He was arrested outside his house by officers of the State Committee for

National Security in civilian clothes who asked him to take a walk and stated that they

would return in an hour or two, but they never did. Mr. Roziq was sentenced to 25 years’

imprisonment;

(e)

Vohidkhon Kosidinov, born in 1956, a member of the Supreme Political

Council of the Party and the Chief of its Election Department. Mr. Kosidinov was arrested

in northern Tajikistan and sentenced to 16 years’ imprisonment;

(f)

Kiyomiddin Avazov, born in 1973, a politician, Chair of the Dushanbe

chapter of the Party, a former employee of the party apparatus and a specialist in Arabic.

He was an active member of the Supreme Political Council of the Party. Mr. Avazov was

sentenced to 28 years’ imprisonment in maximum security;

(g)

Abduqahar Davlatov, born in 1975, a member of the Supreme Political

Council of the Party and Chief of the Foreign Relations Department. He was sentenced to

28 years’ imprisonment;

(h)

Hikmatulloh Sayfulloza, born in 1950, a member of the Supreme Political

Council of the Party and editor-in-chief of the Najat Newspaper. He was sentenced to 16

years’ imprisonment;

(i)

Sadidin Rustamov, born in 1956, a member of the Supreme Political Council

of the Party. He was sentenced to 20 years’ imprisonment;

A/HRC/WGAD/2019/66

3

(j)

Sharif Nabiev, born in 1962, a member of the Supreme Political Council of

the Party and head of its Kulab chapter. He was sentenced to 14 years’ imprisonment;

(k)

Abdusamat Ghayratov, born in 1967, a member of the Supreme Political

Council of the Party. He was sentenced to 14 years’ imprisonment.

5.

The source states that Mr. Avazov, Mr. Davlatov, Mr. Sayfulloza, Mr. Rustamov,

Mr. Nabiev and Mr. Ghayratov were deprived of their liberty on 16 September 2015,

although precise details surrounding their arrest are unobtainable.

6.

The 11 individuals were reportedly indicted with the following charges under the

Criminal Code: criminal organization; arousing national, racial, local, or religious hostility;

extremism; illegal deprivation of liberty; criminal attempt; sabotage; arms theft; arms trade;

murder; terrorism; forcible capture of power; armed rebellion and polygamy. Their trial

began on 9 February 2016.

(a)

Pretrial detention

7.

The source reports that the 11 members of the Islamic Renaissance Party remained

in pretrial detention at the SIZO (pretrial) detention centre, from the time of their arrests

until their sentencing on 2 June 2016. They were denied bail, regularly abused, tortured and

deprived of access to medicine and critical health care.

8.

According to the source, the 11 detainees were subjected to various forms of

coercion in order to extract confessions from them. When Mr. Husaini refused the offer of a

government position in exchange for appearing on television declaring the activity of the

Party illegal, officers of the State Committee for National Security put a bag on his head

and beat him. The officials reportedly continued to beat Mr. Husaini throughout his time in

pretrial detention. He was detained in solitary confinement at the pretrial detention facility

and his family was not allowed to visit.

9.

The source reports that Mr. Faiz-Muhammad was also beaten and tortured during his

pretrial detention when he refused to denounce the Party and its leaders. He was subjected

to electric shocks and shot at with a pistol. Knowing that he suffered from kidney disease,

officers of the State Committee for National Security allegedly beat him in the region of his

kidneys.

10.

Mr. Rajab was allegedly beaten for the first three days of his pretrial detention in

order to extract a confession. His family were not allowed to see him or communicate with

him during the first four months of his pretrial detention. Sources report that the eight other

detained members of the Party also suffered abuse and torture during their pretrial detention.

(b)

Lack of access to a lawyer

11.

The source complains that the 11 men were not given access to legal counsel

immediately following their arrest. They were denied such counsel until 26 September 2015.

Even after they were permitted to meet with lawyers, the authorities allegedly went to great

lengths to prevent them from receiving effective legal assistance.

12.

A notorious violation of their right to legal counsel was the arrest of one of the

lawyers. Shortly after the arrest of the members of the Islamic Renaissance Party, their

lawyer publicly announced that he was representing the detainees and organizing a

committee to provide all of them with legal representation. State officials arrested the

lawyer and demanded the withdrawal of his representation. They also raided his home and

office, seizing privileged legal documents. He was sentenced to 28 years in prison.

13.

The Government also told other lawyers for the Party that they could not provide

their clients or the public with information about the case, other than the information that

the Government instructed them to share. The lawyers were allegedly threatened with arrest

or disbarment if they failed to obey. One of the lawyers told the detainees that he could not

defend them or change the result of the trial. Mr. Roziq’s lawyer refused to provide him or

his family with information about the trial and eventually abandoned the legal profession.

14.

The source reports that none of the 11 individuals was aware of the charges against

them until, at most, approximately two weeks before their trial and some did not learn of

the charges until the trial itself. The authorities reportedly refused to share any information

about the trial with the accused, their families or the public. In addition, the Government

A/HRC/WGAD/2019/66

4

did not allow any of the 11 detainees or their lawyers to view evidence or the list of

witnesses in advance, while monitoring the meetings between lawyers and clients.

(c)

Prosecution and conviction

15.

According to the source, in February 2016, the 11 members of the Islamic

Renaissance Party were tried as a group in a secretive, closed-door trial. The defendants

and their lawyers were not given adequate means to prepare a defence. Reportedly, some

were given approximately two weeks to review the Government’s allegations, while others

were given less time. Further, they were denied pretrial access to most of the evidence,

which was deemed “classified”. They were not permitted to see the list of witnesses. Even

after the accused were allowed to view the complaint against them, their access to it was

time-restricted.

16.

According to the information received, immediately prior to appearing in court, the

11 men were forced to run to the courthouse while chained together, which resulted in

injuries when anyone stumbled or fell; they were then presented in court, still shackled

together, with visible bloody injuries and bruises on their faces.

17.

The source reports that the trial was not a standard civilian-led proceeding. Rather,

the Chief Military Judge presided, even though the accused were not in military service and

were charged under the Criminal Code.

18.

The trial reportedly lasted several months, during which time the prosecution set

forth a long list of witnesses and allegations. The source claims that at least two witnesses

were beaten and coerced into giving testimony. Although the defence was permitted to

cross-examine the witnesses, they were given no advance notice of their identities or the

object of their testimony. The defence was denied the opportunity to present expert

witnesses, despite numerous requests. During the trial, a witness for the Government

allegedly retracted his testimony on behalf of the prosecution while on the stand. However,

the Court ignored his withdrawal and only recognized his initial testimony (which the

witness had stated was entirely false). Another witness testified that he had never heard the

accused discussing potential armed rebellion and that he had been coerced to testify

otherwise, pursuant to a deal that he had made to avoid further prosecution. In response to

his testimony retracting the earlier falsehoods, the witness was reportedly brutally beaten.

19.

On 2 June 2016, the Supreme Court found the accused guilty, and sentenced them to

terms ranging from 14 years to life imprisonment (see para. 4 above).

(d)

Conditions of detention

20.

The source provides information about the conditions of the pretrial detention of the

11 men. Each cell has the capacity to hold 14 or 16 prisoners, but typically holds up to 25

prisoners and bed sheets are dirty and infested with bedbugs. Because of the overcrowding,

prisoners sleep on the concrete floor. Conditions in the prison cells are unsanitary and the

entire prison is infested with cockroaches and rodents. In the summer, the place is

extremely hot and humid, and the windows are covered with metal shutters, restricting air

circulation. Drinking water is tainted with rust from the pipes and prisoners are only

permitted to shower once a week, when dozens are crammed into a single shower.

21.

As of May 2019, the 11 detained members of the Islamic Renaissance Party were

reported to be held at the maximum security penal colony No. 1 in Dushanbe and Vahdat

prison No. 3/2.

22.

On the evening of 19 May 2019, a riot broke out at the maximum security prison in

Vahdat. The prison holds numerous political prisoners, including members of the Islamic

Renaissance Party. The Justice Ministry reported that 3 prison guards and 29 inmates were

killed in the riot, including members of the Party. The 11 members of the Party were also

beaten and sustained injuries, including broken ribs.

23.

The source reports that prisoners are allowed outside for 15 minutes each day and

are subjected to strict and unreasonable rules. Between 6 a.m. and 10 p.m. prisoners are not

allowed to lie down. If the rules are violated by any prisoner, everyone in the cell may be

punished. Punishments vary from beatings to orders to stand still for hours on end

(sometimes completely naked), to torture with an electric current through the prisoner’s

A/HRC/WGAD/2019/66

5

body. Sick prisoners are not isolated from the rest of the population and there is little access

to medical care.

24.

Mr. Rajab reportedly suffered a “micro stroke” but was not allowed to see a doctor.

When he began to suffer from severe inflammation and pain in his gums, he was taken to a

dentist, but the dentist’s instruments were dirty and unsterilized and some were covered in

blood. Mr. Rajab was forced to decline the necessary care and his suffering has continued.

Many of the 11 detainees have health problems, for which they are not receiving adequate

treatment. Mr. Roziq has heart pain and breathing difficulties, and his health has declined

precipitously since his imprisonment began. Mr. Faiz-Muhammad suffers from kidney

disease, for which he has not received treatment.

25.

The source claims that Mr. Husaini’s family is only allowed to see him twice a year,

for 30 minutes each time. The families of Mr. Roziq and Mr. Rajab were allowed to visit

every three to four months but at present are not allowed to visit at all.

Category I

26.

The source claims that the detention is arbitrary under category I, since all the arrests

were carried out without a warrant. In addition, the 11 individuals were held

incommunicado, without information about the charges against them and without being

brought promptly before a judicial authority. They were arrested on 16 September 2015 and

brought before a judge on 19 September. They were held without communication with the

outside world or with a lawyer for 10 days. Some of them were never informed of the

charges against them before trial, while others were reportedly informed of the charges

against them approximately two weeks prior to trial, more than four months after their

arrest.

Category II

27.

The source claims that the detention is arbitrary under category II, alleging that it is

the result of the exercise of freedom of opinion and expression, association and

participation in public affairs.

28.

The source claims that the Government arbitrarily detained and prosecuted the 11

men in retribution for exercising their rights to freedom of opinion and expression, as

members of a political party that had openly criticized the Government. Their harassment,

followed by their mass arrests and highly politicized trial, fits into what is alleged to be a

pattern of silencing dissenting voices. The Supreme Court declared the Islamic Renaissance

Party to be a terrorist organization and banned all future activities, including the

distribution of any newspapers, videos, audio recordings, literature and leaflets connected

to the Party. The Government has systematically targeted and arrested opposition party

members, journalists and those who post critical content on social media.

29.

The Government has also tried to intimidate the 11 men by threatening their families

in an attempt to silence critical voices. The wife of one of them was intimidated when

trying to file complaints with the Ministry of Internal Affairs and the son of another was

interrogated and beaten by police, following a demonstration in support of the Party. The

detention is part of a broader pattern of suppressing all voices critical of the Government

and the ruling party. The source claims that the actions against the 11 detainees constitute a

violation of article 19 of the Covenant.

30.

According to the source, the Government has sought to criminalize membership of

the Islamic Renaissance Party. It views it as a threat, because it is the largest opposition

party. The 11 detainees are long-term senior leaders of the Party and the Government has

systematically persecuted them for their involvement with it.

31.

The source argues that the decision to try the 11 men jointly and to use much of the

same weak and falsified evidence, demonstrates the efforts to criminalize all members of

the Party. The prosecution’s allegations were devoid of any meaningful supporting details

and were unsubstantiated by evidence. There is reportedly no evidence that the Party was

involved in the attacks in Dushanbe on 4 September 2015, in which the 11 men are accused

of participating. The source claims that charging all the party leaders with participating in a

coup d’état was simply a pretext for the Government to silence opposition voices.

A/HRC/WGAD/2019/66

6

32.

The source claims that the arbitrariness of the detention is demonstrated by the

accumulation of relevant factors: (a) the history of past intimidation and harassment of

members of the Islamic Renaissance Party; (b) the fact that one of the charges levelled in

the accusation explicitly criminalized the association of the 11 men with the Party; (c) the

joint trial; (d) their conviction without any substantiating evidence; and (e) the wider

context of repression against the Party as a whole, including banning the organization and

attacking its lawyers. That allegedly demonstrates that the arrest, detention and conviction

of the 11 men were motivated by their association with the Party.

33.

The source argues that the detention of the 11 men was a response to the

participation in public affairs of members of the Islamic Renaissance Party. The charges

brought against them were fabricated and designed to justify banning the Party. The

detainees were senior party leaders, who thus played a critical role in the organization,

including running for office and criticizing the Government. Their detention follows

previous attempts to prevent them and the Party as a whole from participating in politics or

influencing public affairs.

34.

According to the source, the Party and its members have long been under attack,

including the arrest and detention of a Party member in October 2013. That person was

allegedly tortured by the police in an effort to get him to incriminate himself, before he died

in prison in January 2014. The political repression has reportedly accelerated since an

attempted coup in September 2015, which was the pretext for the arrest of the 11 men.

35.

The circumstances surrounding the arrests, detention and convictions are part of an

alleged pattern of suppressing opposition politicians and activists. Members of the Islamic

Renaissance Party have been the most aggressively targeted, but other opposition groups

have also been persecuted. In 2013, a former Minister of Industry was arrested shortly after

he announced the establishment of a new party. Following a closed trial, he was convicted

and sentenced to 29 years’ imprisonment. Furthermore, after a peaceful political movement

called for democratic reform, it was declared “extremist” and persons accused of

association with the group were investigated and detained. The leader of that political group

was reportedly killed in March 2015, another was sentenced to five years’ imprisonment in

May 2016.

36.

The source argues that the Government is not only punishing the 11 members of the

Islamic Renaissance Party for their past political participation, but also preventing them and

other supporters of the Party from exercising that right. Such actions allegedly violate

article 21 (1) of the Universal Declaration of Human Rights and article 25 (a) of the

Covenant.

37.

The source further claims that the limitations allowed to the rights to freedom of

expression and association in articles 19 (3) and 22 (2) of the Covenant do not apply in this

case, as they were not imposed for a legitimate purpose. The Government used national

security as a pretext to silence criticism and disband an opposition party. The vague factual

allegations failed to specify with any precision the nature of the threat posed by the

expression of peaceful political dissent. Criticism of the Government cannot be punished

under national security exceptions.

38.

The source argues that even if the authorities could invoke national security, the

limitation on freedom of expression was not “necessary”. The sentence imposed is

allegedly disproportionate to any conceivable threat posed by the Islamic Renaissance Party

or the expression of political views. Limiting expression and association in this way cannot

be considered “necessary” for national security purposes. Because criticism of the

Government and membership of the Party are protected rights, and because the

Government’s limitation on these does not fall within the narrow exceptions contained in

articles 19 (3) and 22 (2) of the Covenant, the source claims that the detentions are arbitrary

under category II.

Category III

39.

According to the source, violations by the Government of international standards of

due process in the arrest, detention, trial and conviction of the 11 men were so grave as to

render the deprivation of liberty arbitrary. The source claims that the objective of the

judiciary was not to render an impartial judgment but to silence and punish critics and

suppress peaceful opposition.

A/HRC/WGAD/2019/66

7

40.

The source claims that the arrests of the 11 men were carried out without warrants.

Government officials did not identify themselves or their authority for making the arrests

and many of the arresting officers wore civilian clothes. The source claims that this violates

article 9 (1) of the Covenant and article 9 of the Universal Declaration of Human Rights.

41.

The source stresses that article 17 of the Covenant ensures the right to privacy. The

Constitution of Tajikistan recognizes the right to privacy in the home and prohibits searches

and seizures without a warrant. Article 192 of the Code of Criminal Procedure further states

that police may not enter and search a private home without the approval of a judge. The

source claims that the State officials did not present a search warrant for any of the searches

and seizures conducted in the homes of the 11 men, nor did they present warrants for their

searches and seizures at the offices of their lawyers.

42.

According to the source, none of the 11 men were promptly informed of the charges

against them and some were never informed of the charges against them prior to their trial.

The earliest account of their being informed of the charges against them is approximately

two weeks prior to their trial.

43.

The source explains that it is difficult to determine exactly when the 11 men were

brought before a judge. However, there is no evidence of them being brought before a judge

earlier than three days after their arrest. There is reportedly no explanation of what

exceptional circumstances might have delayed the hearing. The source claims that refusing

the detainees the right to challenge their detentions within a reasonable time was a violation

of article 9 (3) and (4) of the Covenant.

44.

The source claims that the 11 men were held in detention pending trial without

proper justification. The detention, from the time of arrest and through the trial, which was

based on generic, group-wide accusations, suggests that the court defaulted to treating

pretrial detention as a general rule. The denial of bail reportedly falls within a pattern

whereby critics of the Government are commonly held for lengthy periods in pretrial

detention, because the main purpose is to have opponents silenced and behind bars. The

source claims that, in contradiction to the requirement that pretrial detention be the

exception rather than the rule and that such pretrial detention be based on an individualized

determination that it is both reasonable and necessary, the judge defaulted to continuing the

pretrial detention in violation of article 9 (3) of the Covenant.

45.

The source further claims that the 11 men were not given access to legal counsel

immediately after their arrest. Mr. Husaini was not permitted to meet with a lawyer until

four or five days after he was arrested. Mr. Faiz-Muhammad was not permitted to meet

with a lawyer until 10 days after he was arrested and even then the meeting was limited to a

very short time. The 11 men have not been able to communicate with anyone outside the

prison due to it being “locked down” after the riots in May 2019. Even when they were

eventually allowed to meet with lawyers, the Government allegedly took action to prevent

them from receiving effective legal counsel.

46.

The source submits that the 11 individuals were not only denied access to lawyers

but also not informed of the criminal charges against them. Mr. Husaini was not informed

of the charges at the time of his arrest, was detained for five days without access to a lawyer

and was not permitted to challenge his detention. Mr. Faiz-Muhammad was detained for 10

days without access to a lawyer or information regarding the criminal charges against him.

The source claims that the breach of article 9 (3) of the Covenant enabled other human

rights violations, such as torture, while the detainees were held without access to their

lawyers or families.

47.

The source explains that the Government used intimidation tactics to prevent the

men’s lawyers from providing the necessary information to their clients and to their

families, and generally prevented the lawyers from providing even the most basic legal

assistance. When the lawyers were not deterred by the intimidation tactics, the Government

had them arrested. The authorities took action to ensure that lawyers controlled by the

Government were the ones providing legal counsel. An additional limitation to the men

being able to receive legal counsel included their meetings with their lawyers being

supervised and a refusal by the authorities to provide information and documents, such as

key evidence, a list of witnesses and details of the charges, so that they could prepare for

their trial. The source claims that the Government violated the rights enshrined under article

14 (3) (b) and (d) of the Covenant.

A/HRC/WGAD/2019/66

8

48.

According to the source, the Government repeatedly infringed the right to prepare a

defence. The accused and their lawyers were drastically restricted in their ability to access

the evidence, the witnesses and even the charges. Both the detainees and their lawyers were

denied access to information that was critically necessary to preparation for the trial. They

did not even have access to the charges until at most two weeks immediately preceding the

trial and even then they were limited to short periods of time to review the complaint. The

source alleges that the Government violated their rights under article 14 (3) (b) of the

Covenant.

49.

The source claims that the trial was secret, as the accused were tried behind closed

doors, their families were not able to obtain any information about what was happening,

and nor was any information released to the public. The source alleges that the Government

violated their rights under article 14 (1) of the Covenant and article 10 of the Universal

Declaration of Human Rights.

50.

The source contends that the court that adjudicated the case was not independent and

unbiased, leading to an unfair proceeding, which did not afford the right to equality of arms.

The source states that the court system in Tajikistan is not independent, as the Ministry of

Justice allegedly controls the judiciary at the national level. The authorities in the executive

branch reportedly exert extreme influence over the judiciary, which additionally lacks the

resources needed to function independently. For the source, a court system where the rate

of acquittal is almost zero cannot be considered to function independently.

51.

According to the source, the judge permitted the accused to be presented in shackles,

bruised and bleeding. The judge reportedly allowed the intimidation of witnesses and, at

one point, allowed a witness to be physically beaten for not lying as instructed. The judge

also admitted evidence that had been obtained through illegal searches and seizures and in

some cases falsified. The source emphasizes that the judge did not give any weight to the

testimony of a witness to the effect that the Government had coerced him into giving false

testimony but then accepted the false testimony that had been retracted. Finally, the court

found the accused guilty on all counts, despite the lack of evidence proving any legitimate

connection with alleged criminal conduct. The source claims that the Government violated

the rights of the accused under article 14 (1) and (3) (e) of the Covenant and article 10 of

the Universal Declaration of Human Rights.

52.

The source further argues that the Government did not respect the presumption of

innocence. Prior to their trial, government officials reportedly expressed virtual certainty

about the guilt of those accused by publicly referring to them as terrorists and enemies of

the people. They were brought into the courtroom in a manner suggesting their guilt,

shackled, bruised and bloody. The source claims that by publicly asserting the guilt of the

accused, forcing them to appear in court shackled, bruised and bloody and displaying

extreme bias against them throughout the trial, the Government violated the presumption of

innocence, in breach of article 14 (2) of the Covenant and article 11 (1) of the Universal

Declaration of Human Rights.

53.

The source maintains that the 11 accused and their lawyers were unable to

effectively examine witnesses because they were not given advance notice of the list of

witnesses and thus could not properly prepare for cross-examination. Furthermore, the court

did not permit the defence to present expert witnesses, while the Government was permitted

to present such witnesses. The Government therefore violated article 14 (3) (e) of the

Covenant.

54.

The source claims that all 11 men shared a common experience of prison conditions,

physical abuse and, in some cases, denial of even the most basic medical care. Mr. Husaini

was reportedly detained for five days after his arrest, prohibited from speaking with his

family and physically beaten in custody. Mr. Rajab was allegedly subjected to freezing cell

temperatures in winter and oppressively hot conditions in summer, and he was badly beaten

on his first day in prison and tortured for three days in a row in an attempt to obtain a

confession from him. Mr. Rajab was reportedly denied adequate medical care, as prison

officials only allowed access to a dentist with contaminated instruments. His cell was

infected with bedbugs that caused painful bites but prison officials reportedly denied proper

treatment for the bedbug infection. The source claims that Mr. Faiz-Muhammad was

tortured for days while being transported to detention and in pretrial detention. Evidence of

this torture was allegedly captured by a lawyer on a tape recorder. The torture included

A/HRC/WGAD/2019/66

9

physical beatings that led to kidney damage and brutal electric shocks. The source also

alleges that Mr. Faiz-Muhammad was shot by prison officials during his detention.

Response from the Government

55.

On 15 November 2018, the Working Group transmitted the allegations from the

source to the Government under its regular communications procedure. The Working

Group requested the Government to provide, by 14 January 2019, detailed information

about the current situation of the 11 detainees and to clarify the legal provisions justifying

their continued detention, as well as its compatibility with the State party’s obligations

under international human rights law. The Working Group called upon the Government to

ensure the physical and mental integrity of the detainees.

56.

On 18 January 2019, the Working Group received a reply from the Government. The

reply was late and the Working Group regrets that the Government did not request an

extension of the time limit, as provided for in the Working Group’s methods of work. The

Working Group cannot therefore accept the reply as if it was presented within the time limit.

The Working Group notes that in accordance with paragraph 16 of its methods of work, it

renders its opinions on the basis of all the information it has obtained.

Discussion

57.

In the absence of a timely response from the Government, the Working Group has

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

work.

58.

The Working Group has established in its jurisprudence 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). In the present case, the Government failed to challenge the prima facie credible

allegations made by the source.

Category I

59.

The source has submitted that the 11 members of the Islamic Renaissance Party

were arrested without warrants or proper notification of the reasons for their arrest. In

addition, the domicile of Mr. Rajab was searched without a warrant and the same occurred

in relation to all the other alleged victims.

60.

The source has also submitted that none of the 11 individuals were promptly brought

before a judge and that none of them were notified of the charges against them. Some were

notified of the charges only about two weeks before the trial, while others only found out

what they were once the trial had commenced. The Working Group notes that, even in its

late response, the Government did not clarify either the dates of the arrests, nor did it

produce arrest or search warrants or specify the dates when the men were brought before a

judge or notified of the charges against them.

61.

The Working Group accepts that the 11 individuals were arrested on or around 16

September 2015, that none of them were presented with an arrest warrant and none of them

were provided with an explanation of the reasons for their arrest. As the Working Group

has previously stated, for deprivation of liberty to have a legal basis, it is not sufficient that

there exists a law which may authorize 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 the 11 individuals under article 9 (1) of

the Covenant.

62.

In addition, none of the 11 individuals were notified of the charges against them

until some two weeks before the commencement of their trial. The Working Group recalls

that article 9 (2) of the Covenant requires that anyone who is arrested is not only informed

of the reasons at the time of arrest but also promptly informed of any charges against them.

The obligation in article 9 (2) has two elements: information about the reasons for arrest

1 See opinions No. 17/2019, No. 79/2018, No. 35/2018, No. 75/2017 and No. 66/2017.

A/HRC/WGAD/2019/66

10

must be provided immediately upon arrest and information about the charges must be

promptly provided thereafter.2

63.

In the present case, the 11 individuals were arrested on 16 September 2015. The

Government has chosen not to present any explanation as to when they were notified of the

charges against them and failed to respond to the allegation that such notification did not

take place until some two weeks before the commencement of the trial and that some of

them were only notified of the charges on the day of the trial. The right to be promptly

informed of charges concerns notice of criminal charges and “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

there has been a breach of article 9 (2) of the Covenant.

64.

Further, in order to establish that a detention is legal, anyone has the right to

challenge the legality of his or her detention before a court, as envisaged by article 9 (4) of

the Covenant. It is important to recall that 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.4 That right, which is a peremptory norm of international law, applies to

all forms of deprivation of liberty,5 not only to detention in criminal proceedings but also to

administrative detention and other legal regimes, such as military, security and counter-

terrorism detention, medical or psychiatric confinement, migration detention, detention for

extradition, house arrest, solitary confinement, detention for vagrancy or drugs and

detention of children.6 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”.7

65.

The source has submitted that all 11 individuals were brought before a judge three

days following their respective arrests. The Government has not responded to that

allegation. Judicial oversight of detention is a fundamental safeguard of personal liberty8

and is essential to ensuring that detention has a legal basis. Moreover, 48 hours is ordinarily

sufficient to transport an individual and prepare for the hearing; any delay must remain

absolutely exceptional and be justified.9 That did not take place in the present case and the

Government has not presented any exceptional reasons justifying the delay. The Working

Group therefore finds a breach of article 9 (3) of the Covenant.

66.

The source has also argued that all 11 individuals were initially held incommunicado

for a number of days. As the Working Group has consistently argued, holding persons

incommunicado violates their right to challenge the lawfulness of detention before a court

under article 9 (4) of the Covenant.10 Since the detainees were unable to challenge their

detention, their right to an effective remedy under article 8 of the Universal Declaration of

Human Rights and article 2 (3) of the Covenant was also violated.

67.

The Working Group notes that in order to ensure effective exercise of the right to

challenge the legality of detention, the detained persons should have access, from the

moment of arrest, to legal assistance of their own choosing.11 That was denied to all 11

individuals, which adversely impacted their ability to exercise their right to challenge the

legality of their detention under article 9 (4) of the Covenant.

68.

Further, according to article 9 (1) of the Covenant, no one shall be deprived of

liberty except on such grounds and in accordance with such procedures as are established

by law. In the present case, the private residences of all 11 individuals were searched

2 See Human Rights Committee, general comment No. 35 (2014) on liberty and security of person,

paras. 27–30.

3 Ibid., para. 29.

4 United Nations Basic Principles and Guidelines on Remedies and Procedures on the Right of Anyone

Deprived of Their Liberty to Bring Proceedings Before a Court, paras. 2 and 3.

5 Ibid., para. 11.

6 Ibid., guideline 1, para. 47 (a).

7 Ibid., guideline 1, para. 47 (b).

8 Ibid., para. 3.

9 See Human Rights Committee, general comment No. 35.

10 See opinions No. 44/2018, No. 35/2018, No. 11/2018, No. 79/2017 and No. 28/2016.

11 See United Nations Basic Principles and Guidelines, paras. 12–15.

A/HRC/WGAD/2019/66

11

without a warrant and various items were seized. Such confiscation of property without a

search warrant is a further serious violation of article 9 (1) of the Covenant.12

69.

Finally, in relation to the pretrial detention of all 11 individuals, the Working Group

recalls that it is a well-established norm of international law that pretrial detention should

be the exception and not the rule, and that it should be ordered for as short a time as

possible.13 Article 9 (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

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).

70.

Article 9 (3) of the Covenant further provides that: “It shall not be the general rule

that persons awaiting trial shall 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.” It follows that liberty is recognized as a

principle and detention as an exception in the interests of justice (ibid., para. 54). Under

article 9 (3), pretrial detention must be exceptional and of short duration and release may be

accompanied by measures intended to ensure the presence of the defendant in trial (ibid.,

para. 56).14

71.

In the present case, the Working Group notes that the late response from the

Government does not examine the reasons that led to the remand of the 11 individuals

pending trial. According to the information received, no individualized assessment of the

need for remand ever took place. The Working Group therefore concludes that the pretrial

detention of all 11 individuals breached article 9 (3) of the Covenant.

72.

The Working Group concludes that, since the arrest took place without a warrant;

they were initially held incommunicado; no formal charges were brought until shortly

before their trial; they were prevented from exercising their right to challenge the legality of

their detention; and since their pretrial detention was imposed in breach of article 9 (3) of

the Covenant, the arrest and detention are arbitrary and fall under category I.

Category II

73.

The source has submitted that the 11 individuals were detained owing to the

legitimate exercise of their rights under articles 19 (2), 22 (1) and 25 (a) of the Covenant.

The Government merely rejected those submissions, stating that they were prosecuted for

terrorism offences and violent attempts to overthrow the constitutional order.

74.

The Government argued that the alleged offences manifested themselves when an

armed attack was carried out on two army bases during the night of 3–4 September 2015.

The Government argued that following an investigation, the 11 individuals were charged.

However, the Government has made no allegation that the 11 individuals were part of the

armed attack and has failed to provide any specific information about the crime each of

them is alleged to have committed.

75.

The Working Group recalls that in its concluding observations on the third periodic

report of Tajikistan, the Human Rights Committee expressed its concern “that the ban on

religious and ethnicity-based political parties, introduced by the constitutional amendments

of 2016, raises issues of compatibility with the Covenant” (CCPR/C/TJK/CO/3, para. 53).

The Committee was also concerned about “the harassment and lengthy prison sentences

handed down in respect of the leaders of the Islamic Renaissance Party after unfair and

closed trials and the imprisonment of party members following the designation of the party

in 2015 as ‘terrorist’ for their alleged involvement in the attempted violent seizure of power”

as well as about the “serious harassment, and often imprisonment, of family members of

opposition groups or of individuals associated with such groups” (ibid. and para. 37).15

12 See opinions No. 33/2019, No. 31/2019, No. 83/2018, No. 78/2018, No. 36/2018 and No. 83/2018.

13 See opinions No. 57/2014, No. 49/2014 and No. 28/2014. See also A/HRC/19/57, paras. 48–58 and

A/HRC/30/19.

14 See also general comment No. 35, para. 38.

15 See also CCPR/C/TJK/CO/2, para. 24, and CAT/C/TJK/CO/3, paras. 11–12 and 21–22.

A/HRC/WGAD/2019/66

12

76.

The Working Group observes the similarity of the Government’s late response in

this case to that submitted recently in two other cases.16 The Working Group further notes

the similarity of the pattern of facts between the present case and those other cases.

77.

The Working Group notes that the Human Rights Committee stated in its general

comment No. 34 (2011) on the freedoms of opinion and expression, that freedom of

opinion and expression under article 19 of the Covenant are indispensable conditions for

the full development of the person. They are essential for any society and in fact constitute

the foundation stone for every free and democratic society (para. 2).

78.

The Committee has further stated in the same general comment that the freedom of

expression includes the right to seek, receive and impart information and ideas of all kinds,

regardless of frontiers, and that right 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 for

the rights or reputations of others or to the protection of national security, public order,

public health or morals. The Committee has specified that other basis restrictions outside

paragraph 3 are not allowed, even if they justify restrictions to other rights protected in the

Covenant. Restrictions must be applied only for those purposes for which they were

prescribed and must be directly related to their specific need. Article 21 of the Covenant

permits restrictions to the right of assembly on the same three grounds.

79.

In the present case, the Government of Tajikistan has not invoked any of the

restrictions permitted. It made vague allegations of criminal acts reportedly committed by

the 11 individuals, but failed to specify how any of these took place. It is quite clear to the

Working Group that the basis for the arrest and subsequent detention of the 11 members of

the Islamic Renaissance Party was in fact their exercise of freedom of expression and

freedom of assembly. The Working Group observes that those allegations follow the pattern

noted by it in previous cases,17 as well as that noted by the Human Rights Committee.

80.

While freedom of expression and freedom of assembly are not absolute rights, when

a State imposes restrictions on their exercise, it may not put in jeopardy the right itself.

Moreover, permissible restrictions under article 19 (3) may never be invoked as a

justification for the muzzling of any advocacy of multiparty democracy, democratic tenets

and human rights.18

81.

The Working Group finds that the right of the 11 members of the Islamic

Renaissance Party to take part in the conduct of public affairs, under article 25 of the

Covenant, has been violated, since their arrest was directly linked to their engagement in

the opposition. The Working Group recalls 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. 19 In addition,

freedom of association, including the right to form and join political organizations or those

concerned with public affairs, is essential to the rights protected by article 25. 20 The

Working Group finds that the arrest of the 11 individuals was the result of the exercise of

their rights under article 25 of the Covenant.

82.

The Working Group therefore concludes that the 11 members of the Islamic

Renaissance Party were detained because of their exercise of their rights to freedom of

expression and freedom of assembly and the right to take part in the conduct of public

affairs, and therefore falls under category II.

Category III

83.

Given its finding that the deprivation of liberty of the 11 individuals is arbitrary

under category II, the Working Group wishes to emphasize that no trial should have taken

16 See opinions No. 17/2019 and No. 2/2018.

17 Ibid.

18 See Human Rights Committee, general comment No. 34, paras. 21–23.

19 See Human Rights Committee, general comment No. 25 (1996) on participation in public affairs and

the right to vote, para. 8.

20 Ibid., para. 26.

A/HRC/WGAD/2019/66

13

place. However, the trial did take place and the source has submitted that the detention of

the 11 individuals was arbitrary under category III.

84.

The Working Group observes that the Government did not respond to any of the

specific allegations regarding fair trial, except for a general statement that the detainees

were allowed access to their lawyers and that the public was excluded from the trial since it

concerned national security. The Working Group cannot accept a vague response to the

very specific and serious allegations before it. It must consider that all 11 individuals were

denied access to legal assistance and were unable to communicate freely with their lawyers.

They were all charged with very serious offences and sentenced to lengthy prison terms.

The denial of legal assistance and interference with the independence of lawyers in this

case was in blatant disregard of the procedural guarantees under article 14 (3) (b) and (d) of

the Covenant.

85.

Further, none of the 11 individuals were promptly notified of the charges against

them until shortly before the trial. Such a situation cannot be reconciled with the obligations

under article 14 (3) (a) of the Covenant and the Working Group finds that this provision has

been violated. The failure to promptly notify the accused of the charges also prevented

them and their lawyers from preparing their defence. Article 14 (3) (b) of the Covenant

requires that everyone charged with a criminal offence is to be given adequate time and

facilities to prepare a defence. The Working Group cannot accept that the notification of the

charges two weeks before the trial, especially in a case involving accusations of terrorism,

was compatible with the requirements of article 14 (3) (b). The Working Group therefore

finds a further breach of this provision.21

86.

The Working Group also notes with concern the allegations of serious intimidation

of the lawyers. That is a serious interference with the right to legal assistance in violation of

article 14 (3) (b) of the Covenant.22 It is the legal and positive duty of the State to protect

everyone on its territory or under its jurisdiction against any violation of human rights and

to provide remedies whenever such a violation occurs. In particular, the Working Group

recalls that “legal counsel shall be able to carry out their functions effectively and

independently, free from fear of reprisal, interference, intimidation, hindrance or

harassment”.23

87.

The Working Group further notes that the 11 individuals and their lawyers were not

given full access to all the evidence and case materials. The Working Group has stated that

every individual deprived of liberty has the right to access material related to the detention

or presented to the court by the State in order to preserve the equality of arms.24 However,

the disclosure of information may be restricted if it is necessary and proportionate in

pursuing a legitimate aim, such as protecting national security, and if the State has

demonstrated that less restrictive measures would be unable to achieve the same result.25 In

the present case, the Government has failed to demonstrate the necessity and

proportionality of this measure. The Working Group finds that all 11 individuals were

denied the right to equality of arms under article 14 (3) (b) of the Covenant.

88.

Furthermore, the 11 individuals and their lawyers were unable to examine witnesses,

they were not given prompt notification of and access to the list of witnesses and they did

not even know when each witness would appear. In its general comment No. 32 (2007) on

the right to equality before courts and tribunals and to a fair trial, the Human Rights

Committee has stressed that article 14 (3) (e) of the Covenant guarantees the right to have

witnesses admitted that are relevant to the defence and to be given a proper opportunity to

question and challenge the witnesses against them at some stage of the proceedings (para.

39). In the present case, that right was denied. The absence of equality of arms in the

proceedings is a violation of article 14 (3) (e) of the Covenant.

21 See, for example, Peter Grant v. Jamaica (CCPR/C/56/D/597/1994) and Michael Sawyers and

Desmond McLean v. Jamaica (CCPR/C/41/D/226/1987).

22 See opinions No. 70/2017 and No. 29/2017.

23 United Nations Basic Principles and Guidelines, para. 15.

24 United Nations Basic Principles and Guidelines, principle 12 and guideline 13. See also opinions No.

78/2018, No. 18/2018, No. 89/2017, No. 50/2014 and No. 19/2005.

25 See United Nations Basic Principles and Guidelines, guideline 13, paras. 80–81, and opinions No.

17/2019 and No. 18/2018.

A/HRC/WGAD/2019/66

14

89.

The Working Group notes that the source alleges that the right of all 11 individuals

to be presumed innocent was denied, as they were presented to the court shackled and

bruised and government officials openly referred to them as “terrorists” prior to the trial.

The Working Group notes the failure of the Government to respond to these allegations.

90.

In its general comment No. 32, the Human Rights Committee states that it is a duty

for all public authorities to refrain from prejudging the outcome of a trial and that

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. In

addition, the media should avoid news coverage undermining the presumption of innocence

(para. 30).

91.

The Working Group notes that government officials made public statements about

the 11 individuals, calling them “terrorists”. The Government has further failed to provide

any explanation as to what warranted the need to present the detainees to the court in the

manner that they were presented. The Working Group concludes that there has been a

breach of article 14 (2) of the Covenant.

92.

Furthermore, the Working Group observes that the Government has stated that the

investigation was carried out under a degree of secrecy due to national security, but has

failed to present any explanation as to why the trial took place behind closed doors so that

even family members were not allowed to be present. The Working Group notes that the

case of the 11 individuals did not fall into any of the exceptions to the general obligation of

public trials under article 14 (1) of the Covenant, and that the Government did not invoke

any of those exceptions to justify the closed trial. The Working Group thus finds a violation

of article 14 (1) of the Covenant.

93.

The source submitted that the 11 individuals did not receive a trial by an impartial

and independent tribunal as is required under article 14 of the Covenant, another allegation

summarily dismissed by the Government. Nevertheless, the Working Group is unable to

accept the blanket submission by the source that “the court system in the country is not

independent, as the Ministry of Justice allegedly controls the judiciary at the national level”

without a specific explanation as to how this was manifested in the trial.

94.

However, the Working Group accepts the source’s allegation that the judge allowed

the intimidation of witnesses, admitted evidence that was obtained through illegal searches

and ignored the claim that one witness was coerced into giving his testimony. In that regard,

the Working Group recalls that the requirements of competence, independence and

impartiality of a tribunal under article 14 (1), is an absolute right that is not subject to any

exception.26 The Human Rights Committee has further observed that the requirement of

impartiality has two aspects: judges must not allow their judgment to be influenced by

personal bias or prejudice, nor harbour preconceptions about the case before them, nor act

in ways that improperly promote the interests of one of the parties to the detriment of the

other and the tribunal must also appear to a reasonable observer to be impartial.27

95.

It is clear that the behaviour of the trial judge showed a clear bias towards the

prosecution and the Working Group therefore finds a breach of article 14 (1) of the

Covenant. In arriving at this conclusion the Working Group is mindful of the concluding

observations of the Human Rights Committee on the third periodic report of Tajikistan, in

which it expressed concerns about allegations of unfair trials, violations of equality of arms

and of the presumption of innocence and closed trials (CCPR/C/TJK/CO/3, para. 37). The

Working Group decides to refer the present case to the Special Rapporteur on the

independence of judges and lawyers.

96.

The Working Group also wishes to observe that the trial was presided over by a

military judge, although all 11 individuals were civilians. The Working Group has

consistently argued that the trial of civilians by military courts is a violation of the

Covenant and customary international law and that under international law military

26 General comment No. 32, para. 19.

27 Ibid., para. 21.

A/HRC/WGAD/2019/66

15

tribunals can only be competent to try military personnel for military offences

(A/HRC/27/48, paras. 67–70).28

97.

The Working Group wishes to express its serious concern at the allegations made by

the source that a number of individuals were seriously ill-treated during their time in

detention. In the view of the Working Group, the treatment described by the source reveals

a prima facie breach of the absolute prohibition of ill-treatment and torture, which is a

peremptory norm of international law and of the Convention against Torture and Other

Cruel, Inhuman or Degrading Treatment or Punishment, as well as of principle 6 of the

Body of Principles for the Protection of All Persons under Any Form of Detention or

Imprisonment and rule 1 of the United Nations Standard Minimum Rules for the Treatment

of Prisoners (the Nelson Mandela Rules). The Working Group is mindful of the concluding

observations of the Committee against Torture on the third periodic report of Tajikistan, in

which the alleged ill-treatment of Mr. Rajab is specifically mentioned (CAT/C/TJK/CO/3,

paras. 11–12). The Working Group also refers the present case to the Special Rapporteur on

torture and other cruel, inhuman or degrading treatment or punishment.

98.

Consequently, the Working Group finds that the trial of the 11 members of the

Islamic Renaissance Party was carried out in total disregard for the guarantees encapsulated

in article 14 (1), (2) and (3) (b), (d) and (e) of the Covenant and that these were of such

gravity as to give their deprivation of liberty an arbitrary character under category III.

Category V

99.

The source has not made any submissions under Category V. However, the Working

Group has noted that the present case is strikingly similar to two other cases that it has

previously considered in opinions No. 2/2018 and No. 17/2019, with facts, allegations and

even the Government’s response following the same pattern. The Working Group also

notes that in its concluding observations on the third periodic report of Tajikistan, the

Committee against Torture expressed deep concern “at allegations that individuals who

complain of torture, members of their families, human rights defenders including lawyers

representing victims of torture, and journalists reporting on allegations of torture frequently

face reprisals by officials of the State party” (CAT/C/TJK/CO/3, paras. 21–22).

100.

Similarly, in its concluding observations on the third periodic report of Tajikistan,

the Human Rights Committee expressed its concern at “politically motivated harassment of

opposition members that undermines genuine political pluralism” noting the harassment,

imprisonment and sentencing after unfair trials of party leaders and opposition members

(CCPR/C/TJK/CO/3, para. 53).

101.

The Working Group therefore considers that there is a pattern of a distinctive

attitude of the authorities towards those who are part of the opposition, as in the present

case. The Working Group considers that this distinction discriminates on the basis of

political or other opinion, in a manner which 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 that falls

under category V.

102.

In accordance with paragraph 33 (a) of its methods of work, the Working Group

refers the present case to the Special Rapporteur on the promotion and protection of human

rights and fundamental freedoms while countering terrorism.

103.

The Working Group would like to express its gravest concern over the reports of

persistent harassment and intimidation of and threats to the family members of the 11

individuals. The Working Group reminds the Government that States have a duty to protect

individuals and groups and to exercise due diligence in doing so. Intimidation or reprisals

may be the result of acts or omissions by both State and non-State actors. However acts or

omissions are attributable to the State when they are carried out with the consent or

acquiescence of an official or other person acting in an official capacity against any

individuals or groups who are seeking to cooperate, who are cooperating or who have

cooperated with the United Nations (see A/HRC/33/19). The Working Group requests the

Government to ensure that all acts of intimidation against all family members of the 11

28 See also opinions No. 32/2018, No. 28/2018, No. 30/2017 and No. 44/2016.

A/HRC/WGAD/2019/66

16

individuals cease, that an impartial and effective investigation into those actions is carried

out and those responsible brought to justice.

Disposition

104.

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

The deprivation of liberty of Saidumar Husaini, Muhammadali Faiz-Muhammad,

Rahmatulloi Rajab, Zubaidulloi Roziq, Vohidkhon Kosidinov, Kiyomiddin Avazov,

Abduqahar Davlatov, Hikmatulloh Sayfulloza, Sadidin Rustamov, Sharif Nabiev

and Abdusamat Ghayratov, 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) and

(3), 9 (1), (2), (3) and (4), 14 (1), (2), (3) (b), (d), and (e), 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.

105.

The Working Group requests the Government of Tajikistan to take the steps

necessary to remedy the situation of the 11 individuals without delay and bring it into

conformity with the relevant international norms, including those set out in the Universal

Declaration of Human Rights and the International Covenant on Civil and Political Rights.

106.

The Working Group considers that, taking into account all the circumstances of the

case, the appropriate remedy would be to release the 11 individuals immediately and accord

them an enforceable right to compensation and other reparations, in accordance with

international law.

107.

The Working Group urges the Government to ensure a full and independent

investigation of the circumstances surrounding the arbitrary deprivation of liberty of the 11

individuals and to take appropriate measures against those responsible for the violation of

their rights.

108.

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,

the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or

punishment and the Special Rapporteur on the promotion and protection of human rights

and fundamental freedoms while countering terrorism for appropriate action.

109.

The Working Group requests the Government to disseminate the present opinion

through all available means and as widely as possible.

Follow-up procedure

110.

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 Saidumar Husaini, Muhammadali Faiz-Muhammad, Rahmatulloi

Rajab, Zubaidulloi Roziq, Vohidkhon Kosidinov, Kiyomiddin Avazov, Abduqahar

Davlatov, Hikmatulloh Sayfulloza, Sadidin Rustamov, Sharif Nabiev and Abdusamat

Ghayratov have been released and, if so, on what date;

(b)

Whether compensation or other reparations have been made to these 11

individuals;

(c)

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

111.

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.

A/HRC/WGAD/2019/66

17

112.

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.

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.

113.

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.29

[Adopted on 19 November 2019]

29 See Human Rights Council resolution 42/22, paras. 3 and 7.