Opinion; Subjects: UZBEKISTAN, 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.21-07300(E)
Human Rights Council
Working Group on Arbitrary Detention
Opinions adopted by the Working Group on Arbitrary
Detention at its ninetieth session, 3–12 May 2021
Opinion No. 3/2021 concerning Kadyr Yusupov (Uzbekistan)
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,1 on 11 January 2021 the Working Group
transmitted to the Government of Uzbekistan a communication concerning Kadyr Yusupov.
The Government submitted a late reply on 23 April 2021. 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).
1 A/HRC/36/38.
United Nations
A/HRC/WGAD/2021/3
General Assembly
Distr.: General
4 June 2021
Original: English
A/HRC/WGAD/2021/3
2
Submissions
Communication from the source
4.
Kadyr Yusupov is a national of Uzbekistan, born in 1951 and usually residing in
Tashkent. He is currently being held at the 4th prison colony at Navoy.
5.
According to the source, Mr. Yusupov is a retired diplomat with no prior convictions.
He has a distinguished record as evidenced by the various positions he has held at the
Ministry of Foreign Affairs, including Head of Asia and Africa Department, Head of
European Department and, from 2006 to 2009, Chargé d’Affaires in Austria and Permanent
Representative to the Organization for Security and Cooperation in Europe and the United
Nations organizations in Vienna.
a.
Arrest, detention and trial
6.
The source reports that on 3 December 2018, Mr. Yusupov was admitted to the
hospital following a brain trauma and other serious injuries incurred after attempting to
commit suicide owing to a long-term mental illness. While receiving medical attention and
still in a hallucinatory state of mind due to his brain injury, he was reportedly subjected to
questioning by the State Security Service of Uzbekistan. After hours of interrogation, Mr.
Yusupov allegedly confessed to treason in the presence of State Security personnel.
7.
On that same day, the State Security Service reportedly seized Mr. Yusupov’s phone
and laptop without a warrant. On the following day, they obtained a warrant and searched his
flat and family home and again seized his phone and laptops. The next day, a State Security
officer reportedly asked a relative of Mr. Yusupov to sign a letter stating that the items had
been given voluntarily, which he refused to do.
8.
On 10 December 2018, Mr. Yusupov’s family reportedly entered the hospital to find
that he had been taken by the State Security Service without telling the family or doctors
where he was being taken. The next day, a State-appointed attorney called a relative of Mr.
Yusupov to inform him that he was being held at the Central State Security Service Detention
Facility and was facing charges under article 157 of the Criminal Code of Uzbekistan,
relating to treason.
9.
The source reports that on 11 December 2018, a relative of Mr. Yusupov met with the
State-appointed lawyer who presented himself as a private lawyer working for the Uzbek
Chamber of Advocates and asked the family for a retainer payment of $250 per month. The
lawyer explained to the relative that the case was lost and that Mr. Yusupov would get 13
years in prison regardless of his medical condition. The source adds that the family later
found out that this lawyer was in fact a State-appointed lawyer, known for his involvement
with the State Security Service, and decided to decline his services in favour of a private,
independent lawyer.
10.
According to the source, on 21 December 2018, Mr. Yusupov’s family decided to hire
another attorney for Mr. Yusupov. This lawyer made four unsuccessful attempts to see his
client. Investigators showed the private lawyer a letter allegedly written by his client and
dated 27 December 2018 – the day the lawyer had called the chief investigator on the case
asking him for no investigative actions to be taken without his presence as a lawyer. In this
letter, Mr. Yusupov reportedly declined the services of the private lawyer and also declined
to meet with him as he was already represented by the State-appointed lawyer.
11.
On 4 January 2019, Mr. Yusupov’s private lawyer was finally able to meet his client
at the pretrial detention centre (SIZO). During this visit, with guards present, the lawyer
reportedly asked Mr. Yusupov three times whether he voluntarily wrote that letter, but he
was not very responsive and appeared to be struggling to maintain personal hygiene. The
source adds that Mr. Yusupov’s family had still not been able to see him, and they would not
be allowed to see Mr. Yusupov until the day of his conviction, 9 January 2020, and only for
a very short time.
12.
The source reports that on 7 January 2019, suspecting undue influence to reject his
services, Mr. Yusupov’s private lawyer submitted a formal complaint to the Prosecutor
General. In March, the Office of the Prosecutor General responded that they were satisfied
A/HRC/WGAD/2021/3
3
with the State Security Service’s handling of Mr. Yusupov’s case and did not find any
evidence of undue influence. They explained that they had a conversation with Mr. Yusupov,
and that he did not have any complaint regarding the handling of his case. According to the
source, Mr. Yusupov later told his private lawyer that he did not meet anyone from the Office
of the Prosecutor General in the period from January to March 2019, during which the State-
appointed lawyer was representing Mr. Yusupov, and there is no evidence to show that the
meeting took place.
13.
According to the source, Mr. Yusupov’s lawyer was not able to see his client again
until 24 April 2019, that is, nearly four months after his initial meeting with his client. During
that meeting, the lawyer allegedly received complaints from Mr. Yusupov of psychological
torture against him in detention, including daily threats of sexual violence against him and
his family members, and threats to arrest other relatives, if he did not admit guilt.
Additionally, for a period of over a month, lasting until 17 January 2019, Mr. Yusupov was
allegedly denied access to escitalopram, a powerful antidepressant he was prescribed to take
every day. The source adds that doctors advise that missing a dose of escitalopram can cause
relapses, which could lead to bouts of insomnia, suicidal thoughts and irrational behaviour.
The family of Mr. Yusupov tried to give him the medicine on two occasions, in his food and
in a medicine parcel, but the SIZO guards at the pretrial detention centre did not authorize it
until the family’s third attempt, on 17 January 2019. On 8 February 2019, a relative of Mr.
Yusupov filed a complaint regarding this matter to the head of the State Security Service.
14.
The source reports that on 3 June 2019, the Office of the Prosecutor General officially
responded to the complaint from Mr. Yusupov’s lawyer dated 6 May 2019 regarding
allegations of torture, stating that they had now investigated the matter. A member of the
Office of the Prosecutor General met with Mr. Yusupov sometime between April (when the
private lawyer officially started representing Mr. Yusupov) and the end of June 2019 and
asked him whether he had been tortured. According to the source, Mr. Yusupov answered
that he would only talk to members of the Prosecutor General’s Office in the presence of his
lawyer, but briefly confirmed he had indeed been tortured by the State Security Service.
15.
The source adds that during this period, Mr. Yusupov’s detention was extended once
at the request of investigators, notably on 6 March 2019 by a military judge for an additional
two months, that is, until 4 May 2019. There does not appear to be any paperwork regarding
any further extension. Throughout September and October 2019, Mr. Yusupov’s lawyer
wrote a number of letters to various authorities in Uzbekistan, including the Military and
Criminal Courts Record Bureau and the Ministry of Interior, asking them to confirm the
existence of a decision regarding Mr. Yusupov’s continued detention after 4 May 2019. He
reportedly received several responses confirming that no such decision existed.
16.
According to the source, the trial proceedings in Mr. Yusupov’s case were entirely
secret, and his lawyer was reportedly made to sign a non-disclosure agreement preventing
him from discussing the case. At hearings, Mr. Yusupov reportedly appeared in a cage. After
numerous adjournments, he was ultimately found guilty of treason under article 157 of the
Criminal Code of Uzbekistan and was sentenced to five years and six months’ imprisonment
on 9 January 2020. The source notes that Mr. Yusupov’s lawyer was not able to meet face to
face with his client again until 9 October 2020, when he discussed the possibility of appealing
his conviction with him. On 13 October 2020, Mr. Yusupov filed an appeal to the Court of
Cassation of Uzbekistan. The appeal is pending.
b.
Current situation
17.
The source reports that there has recently been a surge of coronavirus disease
(COVID-19) cases in Mr. Yusupov’s prison colony, with no social distancing measures in
place and very poor on-site medical facilities. Mr. Yusupov is an elderly man, with health
issues that put him at heightened risk in the current pandemic. He has a history of
atherosclerosis, coronary artery disease, angina and encephalopathy, which affects cognitive
processes. He also suffers from severe mental health issues resulting in several attempts to
take his own life.
18.
The source adds that there have been recent reports of Mr. Yusupov being mistreated
in detention for raising concerns as to the treatment of inmates in his prison. At the start of
A/HRC/WGAD/2021/3
4
Ramadan, in April 2020, Mr. Yusupov reportedly raised some concerns on behalf of prisoners
to the head of the prison, namely (a) the fact that prisoners are paid a very low wage for their
work; and (b) the inability of prisoners to practise their religion freely. He was reportedly
first sent to a punishment cell for two days for raising those issues, where he started a hunger
strike in protest of his treatment. On the third day of his hunger strike, he was transferred to
solitary confinement where he remained for the next 14 days. The source adds that Mr.
Yusupov had been known for helping other prisoners understand their rights while in prison
and for advocating for them, angering the prison staff.
19.
According to the source, Mr. Yusupov’s solitary confinement cell was only 1.5 m x 2
m, with an iron chair, a bed and a torn mattress. There was no toilet in the cell, just a hole in
the ground. The source adds that his mattress was taken away during the day, and he was
only allowed it from 10 p.m. to 6 a.m. The cell was allegedly infested with insects, small
scorpions and snakes. It was badly lit, such that it was not possible for Mr. Yusupov to even
read. He was also denied basic hygiene items such as a towel or a toothbrush.
20.
More generally, the source reports that the prison conditions in Mr. Yusupov’s colony
are abysmal. He was essentially placed in solitary confinement for wanting to fast and pray.
In addition, the prison administration is reportedly opposed to people exercising religious
freedom, especially if they are Muslim prisoners, follow fasting rituals or pray openly.
Prisoners are also not allowed to exercise as it is believed prisoners who exercise are just
“getting ready to escape”.
21.
The source alleges that torture is also commonplace in the prison, and prison
authorities in Mr. Yusupov’s colony have been beating prisoners while their hands and feet
are tied behind their backs in a torture position known as the “swallow” position. The source
adds that there are thus reasonable grounds to believe, considering his previous treatment in
this colony, that Mr. Yusupov may be at risk of torture.
22.
In this respect, the source notes that the Committee against Torture, in its most recent
concluding observations on Uzbekistan, remained deeply concerned at the use of torture in
criminal proceedings. The Committee specifically referred to Mr. Yusupov’s case, and it
stated that fundamental legal safeguards were absent in his case. The Committee noted that
the State party should re-examine the allegations of torture and ill-treatment against him.2
Since his conviction, Mr. Yusupov has only been able to see his family twice, and they are
very worried about him as he is understandably unwell, and they fear for his mental and
physical well-being.
c.
Analysis of violations
23.
The source submits that the arrest and detention of Mr. Yusupov is arbitrary under
categories I and III as established by the Working Group on Arbitrary Detention.
i.
Category I
24.
The source reiterates that Mr. Yusupov’s pretrial detention was extended once, on 6
March 2019, at the request of investigators. A military judge approved the extension for a
further two months, until 4 May 2019. The source adds that for Mr. Yusupov to have
remained in detention until his conviction on 9 January 2020, his detention would need to
have been extended on two further occasions – at the three months’ mark and at the five
months’ mark, in accordance with articles 245 and 247 of the Criminal Procedure Code of
Uzbekistan.
25.
However, the source notes that there is no paperwork in Mr. Yusupov’s case
indicating further extensions beyond 4 May 2019, and this was confirmed by the authorities
of Uzbekistan (see para. 15 above). The source thus submits that Mr. Yusupov’s detention
beyond 4 May 2019 was in violation of domestic law and thus arbitrary under article 9 (1) of
the International Covenant on Civil and Political Rights.
26.
The source submits that the detention of Mr. Yusupov was also in violation of the
international obligations of Uzbekistan under article 9 of the Covenant. Mr. Yusupov’s
2 CAT/C/UZB/CO/5, paras. 11–13 and 29–30.
A/HRC/WGAD/2021/3
5
lawyer did not lodge an appeal earlier as he was not confident that the client-lawyer privilege
would be respected if he tried to communicate with his client via telephone.
27.
The source notes that under the Covenant, detention pending trial should be the
exception rather than the rule. It should not be general practice to subject defendants to
pretrial detention, regardless of their offence. Whether it is reasonable for an accused person
to remain in detention must be assessed on the basis of the facts of each case. The State must
justify any departure from article 9 and must set out the reasons for doing so in their decision.
28.
The source submits that the court’s decision to remand Mr. Yusupov on 12 December
2018 and the decision to extend his detention on 6 March 2019 did not provide adequate
reasoning for the need for him to be kept on remand. The decision only states that “after
listening to both sides, the judge decided to remand the defendant for three months under
article 245 of the Criminal Code of Procedure.” Mr. Yusupov’s lawyer complained about
each decision, but did not receive any response. It is all the more worrying that the private
lawyer was not Mr. Yusupov’s lawyer at the time those decisions were taken.
29.
The source also refers to the concluding observations of the Human Rights
Committee, in which the Committee remained concerned about deficiencies in the
application of habeas corpus provisions and that the fundamental legal safeguards were not
afforded, in practice, to all persons deprived of liberty, in particular with regard to access to
a lawyer of their choice. 3 The source also notes that the Special Rapporteur on the
independence of judges and lawyers, following his 2019 visit to Uzbekistan, noted that many
lawyers had difficulty obtaining access to clients. In some cases, he reported that prison
authorities put pressure on detainees to force them to waive their right to be assisted by a
lawyer of their choice.4
30.
The source reiterates that Mr. Yusupov was assigned a State-appointed attorney,
whose services the family declined and whom they later found out was allegedly known in
the Uzbek legal system for being picked by the State as a defence attorney in order to facilitate
proceedings for them (see para. 9 above). This lawyer had the opportunity to appeal the
decision to remand Mr. Yusupov on 12 December 2018, but he reportedly did not do so. He
also never sought for Mr. Yusupov’s detention to be reviewed.
31.
The source also submits that Mr. Yusupov was subjected to incommunicado detention
for a period of 135 days: from the day of his arrest until 24 April 2019, which is the day he
was able to meet privately with his independent lawyer for the first time. Although Mr.
Yusupov also had a meeting with the lawyer on 4 January 2019, he was not able to speak
confidentially with him on that occasion. The source notes that the Working Group in its
practice has consistently argued that holding persons incommunicado breaches the right to
challenge the lawfulness of detention before a judge. Articles 10 and 11 of the Universal
Declaration of Human Rights confirm the impermissibility of incommunicado detention, as
does article 9 of the Covenant.
32.
After finally assuming his position as Mr. Yusupov’s counsel, the private lawyer
reportedly sent in three complaints asking for his client’s detention to be reviewed. In each
of them, he cited three grounds for review: (a) Mr. Yusupov was tortured while in detention;
(b) he presented no risk and had no previous criminal record; and (c) his detention as of 4
May 2019 was unlawful as it was not based on any judicial decision. The source notes that
the complaints were rejected first on the basis that they were premature, and then that they
were unreasonable. The judge never effectively reviewed Mr. Yusupov’s detention.
33.
The source also refers to article 9 (3) of the Covenant, which guarantees the right to
“trial within a reasonable time or to release”, and notes that such requirement applies
specifically to pretrial detention. According to the source, six out of 15 hearings were delayed
in Mr. Yusupov’s trial, for reasons such as the illness of the prosecutor or a leak in the
building. The source is of the opinion that these hearings were delayed because of foreign
media and diplomats gathering around the court on these days, attracting international
attention to the case (see para. 42 below). In any event, the source submits that the reasons
3 CCPR/C/UZB/CO/5, para. 28.
4 A/HRC/44/47/Add.1, para. 79.
A/HRC/WGAD/2021/3
6
given by the State to justify such delays are not acceptable, especially because Mr. Yusupov’s
detention was never effectively reviewed, and alternative measures were never considered.
34.
The source concludes that Mr. Yusupov’s trial was unduly delayed, with no effective
review of his detention up until his conviction. He was also held incommunicado for more
than 100 days and was unable to confer with a lawyer of his choosing. For these reasons, the
source submits that Mr. Yusupov’s detention was also arbitrary under articles 9 (3) and (4)
of the Covenant.
ii.
Category III
35.
The source also submits that the non-observance of Mr. Yusupov’s right to a fair trial
is of such gravity as to give his deprivation of liberty an arbitrary character under category
III.
36.
As mentioned in paragraphs 10 to 13 above, Mr. Yusupov was denied his right to
effective legal assistance. The family decided to hire a private lawyer on 21 December 2018,
who was not able to have a confidential appointment with Mr. Yusupov until 24 April 2019,
after Mr. Yusupov’s family received a letter from him asking for the private lawyer to
represent him. According to the source, the State claims that before that, Mr. Yusupov had
declined the lawyer’s services, despite having never met him or even heard of him.
37.
The source notes that once Mr. Yusupov was able to meet with the private lawyer, he
was able to inform him of the systematic psychological torture he had been subjected to
during the time he was held incommunicado, and on 2 May 2019, Mr. Yusupov sent a written
report to the Prosecutor General, the chief investigator and the Head of the State Security
Service, claiming that he had been tortured. He described in detail the two persons who had
tortured him, gave names and reported that they had made serious threats of violence,
including sexual violence, against his family, if he did not admit guilt. According to the
source, Mr. Yusupov avers that, contrary to Uzbek law, notably article 951 of the Criminal
Procedure Code, there were also “unknown” persons present during the interrogations, one
of whom was responsible for some of the torture inflicted on Mr. Yusupov. This is all the
more serious given that, while the signature of the State-appointed lawyer appears on all of
the interrogation reports, Mr. Yusupov maintains that he was interrogated alone without the
presence of a lawyer and gave his confession under duress. He was also denied vital
medication, as described in paragraph 13 above.
38.
Complaints were reportedly filed to the Ombudsman for Human Rights in Uzbekistan,
the national human rights centre, the presidential administration, the Prosecutor General and
the State Security Service. On 3 June 2019, the Prosecutor General’s Office responded that
they did not see any evidence of torture against Mr. Yusupov. According to the source, these
allegations were never properly investigated.
39.
The source also submits that Mr. Yusupov’s detention conditions negatively affect his
ability to prepare his defence and his chances of a fair trial. Under these circumstances, it
would not be unreasonable to assume that Mr. Yusupov was forced to decline the services of
the private lawyer in favour of the State-appointed one, and that he was thus incapable of
preparing an effective defence. The private lawyer was only able to meet Mr. Yusupov 11
days before the end of the preliminary investigation, and two months before the start of the
trial. His access to case material was also delayed, owing to the fact that he was not officially
Mr. Yusupov’s lawyer.
40.
The source further submits that Mr. Yusupov was tried behind closed doors and,
although the international press has tried to cover the case, as it did at the time of the arrest,
it has not been allowed further details. The source refers to the Human Rights Committee,
which acknowledges that courts have the power to exclude all or part of the public for reasons
of morals, public order or national security, but that these cases should remain exceptional.5
A hearing must be open to the general public, including members of the media. The source
5 Human Rights Committee, general comment No. 32 (2007) on the right to equality before courts and
tribunals and to a fair trial, para. 29.
A/HRC/WGAD/2021/3
7
adds that Uzbekistan allegedly has a habit of using closed trials for treason and other serious
charges.
41.
In the circumstances of the case, the authorities did not give any reasoning as to why
the trial needed to be held behind closed doors. The source adds that there seems to be a
blanket ban on public hearings in Uzbek law in cases relating to treason. A relative of Mr.
Yusupov tried to publicize the case by inviting foreign media and diplomats, and in response
was allegedly subjected to threats, intimidation and restrictions on his freedom of movement
from the Uzbek authorities.
42.
The source adds that such threats were allegedly in response to the relative informing
a journalist and representatives of the Embassy of the United States of America in Tashkent
about Mr. Yusupov’s hearing on 4 October 2019. The hearing was postponed owing to the
absence of the State Prosecutor, supposedly for illness, despite Mr. Yusupov having already
been transferred from the prison to the court room, which gives the source grounds to
conclude that the hearing was cancelled at the last minute owing to the presence of
international press. The source adds that five non-governmental organizations issued a press
statement in October 2019, asking the Uzbek authorities to stop harassing a relative of Mr.
Yusupov, and that the relative also complained to the Office of the Prosecutor General, but
to no avail.
43.
The source submits that the situation in Uzbekistan with regard to closed hearings is
very worrying, as is the extent to which the authorities will go to ensure that hearings do not
gain international publicity. This also raises serious questions as to the welcomed judicial
reforms of Uzbekistan and how deeply such reforms run. The source adds that these events
also cast doubts as to the independence of judges in Mr. Yusupov’s case. According to the
source, on the day Mr. Yusupov’s relative brought international media and diplomats, the
judge’s secretary approached them asking who they were. The source adds that the judge and
his secretary would have been the only ones aware of the presence of international media and
diplomats, as the State Security Service was not present on that day.
44.
The source also reports that Mr. Yusupov’s lawyer filed a motion to the Chair of the
Supreme Court on 8 October 2019, asking for the presiding judge to recuse himself under
article 76 of the Criminal Procedure Code owing to his lack of impartiality, but the motion
was rejected. The lawyer cited numerous examples in support of his application, namely, that
the presiding judge: had repeatedly refused to review Mr. Yusupov’s detention despite there
being no legal basis for it; had refused to look into Mr. Yusupov’s allegations of torture; and
had refused to order a medical and psychiatric examination of Mr. Yusupov for over three
months. In addition, the lawyer also cited the suspected communication between the State
Security Service and the judge’s chambers. The source notes that following his visit to
Uzbekistan, the Special Rapporteur on the independence of judges and lawyers concluded
that notwithstanding these judicial reforms, the judiciary could not be regarded at present as
being independent from other State authorities.6
45.
The source submits that Mr. Yusupov was also denied the right to call witnesses. Of
the eight witnesses the defence called, only two were admitted, whereas the prosecution’s 12
witnesses were all accepted. As noted by the Human Rights Committee in paragraph 39 of
its general comment No. 32, 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. The source adds that
most of the prosecution’s witnesses did not provide any evidence to the allegations of treason
and the defence was only able to call a quarter of their witnesses. Moreover, of the 12
prosecution witnesses who were called, the prosecution’s two key witnesses on whose
testimonies the case was built did not appear at trial, violating Mr. Yusupov’s right to cross-
examine prosecution witnesses. According to the source, this is a clear denial of the equality
of arms as guaranteed by article 14 of the Covenant.
46.
The source submits that this also calls into question the basis on which Mr. Yusupov
was convicted. The source adds that while the Uzbek authorities claim he was found guilty
“on the totality of evidence” before them, the charges seemed dubious and the evidence
6 A/HRC/44/47/Add.1, para. 90.
A/HRC/WGAD/2021/3
8
flimsy at best. The prosecution witnesses who did appear did not add anything to the
substance of the allegations, and no evidence was presented to justify a conviction. According
to the source, this gives reason to believe that some weight was given to Mr. Yusupov’s
confession of guilt under torture. His private lawyer believes his conviction was mainly, if
not solely, based on his confession. In addition, the judge never properly addressed the
allegations of torture and did not declare Mr. Yusupov’s confession inadmissible. The failure
of the judge to intervene in this instance is particularly concerning and in clear violation of
the right to be tried by a fair and impartial trial.
47.
The source submits that other violations include the appearance of Mr. Yusupov at
trial in a cage, and his lack of access to his private lawyer for months to discuss and file an
appeal of his conviction. In paragraph 30 of its general comment No. 32, the Human Rights
Committee states that defendants should normally not be kept in cages during trials or
otherwise presented to the court in a manner indicating that they may be dangerous criminals.
Doing so would seriously impede the right to be presumed innocent until proven guilty.
48.
The source also refers to article 14 (5) of the Covenant whereby anyone convicted of
a crime is to have the right to have their conviction and sentence reviewed by a higher tribunal
according to law. Owing to the current pandemic and additional security measures in place,
Mr. Yusupov’s lawyer was unable to meet with his client in a confidential setting for months,
significantly delaying his ability to appeal his conviction.
49.
For all the reasons above, the source concludes that the non-observance of
international norms relating to the right to a fair trial in Mr. Yusupov’s case is of such gravity
as to give his detention an arbitrary character under category III.
Response from the Government
50.
On 11 January 2021, 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 12 March 2021, detailed information about the
current situation of Mr. Yusupov. It also requested the Government to clarify the legal
provisions justifying his continued detention and its compatibility with the obligations of
Uzbekistan under international human rights law, and in particular with regard to the treaties
ratified by the State. Moreover, the Working Group called upon the Government of
Uzbekistan to ensure his physical and mental integrity.
51.
The Government submitted a response on 23 April 2021, that is, after the deadline
given by the Working Group. The reply is therefore considered late, and the Working Group
cannot accept the response as if it had been presented within the time limit. The Government
did not request an extension of the time limit for its reply, within the deadline, as provided
for in paragraph 16 of the Working Group’s methods of work. The Government also
submitted a second reply on 5 May 2021, after the adoption of the present opinion.
Discussion
52.
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.
53.
In determining whether the deprivation of liberty of Mr. Yusupov is arbitrary, the
Working Group has regard to the principles established in its jurisprudence to deal 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. Mere assertions by the
Government that lawful procedures have been followed are not sufficient to rebut the
source’s allegations.7 In the present case, the Government has chosen not to challenge the
prima facie credible allegations made by the source in a timely manner.
7 A/HRC/19/57, para. 68.
A/HRC/WGAD/2021/3
9
54.
The source has submitted that the detention of Mr. Yusupov is arbitrary under
categories I and III. The Working Group shall proceed to examine these submissions in turn.
i.
Category I
55.
The source has submitted that Mr. Yusupov visited a medical facility on 3 December
2018 where he was interrogated by the State Security Service and allegedly confessed to a
crime. While the source has not provided any further details as to the circumstances of these
events, the Working Group is bound to observe the highly irregular nature of these events
and in this respect also notes that in its late reply, the Government has failed to provide any
account of the way in which the arrest of Mr. Yusupov took place. Mr. Yusupov was in a
medical facility following a very serious medical episode, which had clearly left him in a
disturbed state of mind. Somehow the State Security Service officials were present in that
medical facility and proceeded to interrogate him despite his state of health, leading to an
alleged confession. It is clear that this interrogation was carried out without the presence of
Mr. Yusupov’s lawyer.
56.
The source has further submitted that Mr. Yusupov’s phone and laptop were seized
by the same officials without a warrant on the day of interrogation. The exact date of Mr.
Yusupov’s transfer from hospital to a detention facility appears unclear as the source reports
that the family found out on 10 December 2018 that Mr. Yusupov had been transferred, a
fact that the source states was confirmed by the authorities the following day.
57.
The Working Group observes that all these claims were put to the Government and
regrets that the Government has chosen not to address these very serious allegations in a
timely fashion. In such circumstances, the Working Group must conclude that Mr. Yusupov
was interrogated while in a medical facility for an acute health emergency, which had left
him in a disturbed state of mind, leading him to allegedly confess to a crime. This was then
followed by his detention on the same day, although the date of his transfer to a detention
facility remains unclear.
58.
According to article 9 (3) of the Covenant, anyone arrested or detained on a criminal
charge is to be brought promptly before a judge to exercise judicial power. As the Human
Rights Committee has noted, 48 hours is ordinarily sufficient to satisfy the requirement of
bringing a detainee “promptly” before a judge or other officer authorized by law following
his or her arrest; any longer delay must remain absolutely exceptional and be justified under
the circumstances. The Working Group finds that Mr. Yusupov was not brought promptly
before a judicial authority, in violation of article 9 (3) of the Covenant. As a result, the
authorities failed to establish the legal basis of his detention in accordance with the provisions
of the Covenant.
59.
Moreover, the source has alleged, and the Government has chosen not to contest, that
Mr. Yusupov was held incommunicado for some 135 days. As the Working Group has
consistently found, holding persons incommunicado violates their right to be brought before
a court under article 9 (3) of the Covenant and to challenge the lawfulness of their detention
before a court under article 9 (4) of the Covenant.8
60.
This view is consistent with that of the Human Rights Committee, which in paragraph
35 of its general comment No. 35 (2014) on liberty and security of person has argued that
incommunicado detention that prevents prompt presentation before a judge inherently
violates paragraph 3 of article 9. The Working Group recalls that judicial oversight of
detention is a fundamental safeguard of personal liberty and is essential in ensuring that
detention has a legal basis. Given that Mr. Yusupov was unable to contact anyone and
especially his lawyer, which is an essential safeguard to ensure the ability of any detainee to
personally challenge their detention, his 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.9
8 See, e.g., opinions No. 36/2020, No. 35/2018, No. 11/2018, No. 79/2017, No. 46/2017 and No.
45/2017.
9 Opinions No. 61/2020, para. 70; and No. 40/2020, para. 29. See also 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 (A/HRC/30/37, annex), principle 10.
A/HRC/WGAD/2021/3
10
61.
The source has also argued that the pretrial detention of Mr. Yusupov breached article
9 (3) of the Covenant as its imposition did not satisfy the requirement of exceptionality and
no reasons for the pretrial detention were given by the judge. In its late reply, the Government
has chosen not to address these submissions and has provided no explanation as to the reasons
for the imposition of pretrial detention.
62.
The Working Group recalls that it is a well-established norm of international law that
pretrial detention is to be the exception and not the rule, and that it should be ordered for as
short a time as possible and subject to a periodic review to ensure its continued necessity and
proportionality.10 Article 9 (3) of the Covenant provides that it is not to be the general rule
that persons awaiting trial are to be detained, but release may be subject to guarantees to
appear for trial and at any other stage of the judicial proceedings. It follows that liberty is
recognized as a principle and detention as an exception in the interests of justice.11
63.
To give effect to this principle, pretrial detention must be based on an individualized
determination that it is reasonable and necessary, for such purposes as to prevent flight,
interference with evidence or the recurrence of crime.12 The courts must examine whether
alternatives to detention, such as bail, would render custodial measures unnecessary.13 In the
present case, the court failed to comply with the requirements of article 9 (3) of the Covenant
and the pretrial detention was imposed upon Mr. Yusupov in violation of this provision.
64.
The source has further submitted numerous allegations of irregularities concerning the
extensions of Mr. Yusupov’s detention. According to the source, the national legislation
requires a periodic review and renewal of Mr. Yusupov’s detention. When enquiries about
such reviews taking place were made by Mr. Yusupov’s lawyer, confirmations or indeed the
requisite paperwork were not forthcoming, and complaints submitted by the lawyer remained
unanswered. The Working Group notes that these allegations have not been contested by the
Government. In these circumstances, the Working Group finds that the continued pretrial
detention failed to respect the requirements of the national law of Uzbekistan and thus
violated article 9 (1) of the Covenant, which strictly obliges all detention to be consistent
with national law.
65.
Furthermore, the source has made serious allegations concerning Mr. Yusupov’s right
to legal assistance, which remain uncontested by the Government. In this respect, the
Working Group recalls that to establish that a detention is indeed legal, anyone detained has
the right to challenge the legality of his or her detention before a court, as envisaged by article
9 (4) of the Covenant. The Working Group wishes to emphasize that according to the 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, 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.14 This right, which is in fact a peremptory norm of
international law, applies to all forms of deprivation of liberty,15 is not limited to detention
for purposes of criminal proceedings. It extends to all situations of detention under
administrative and other fields of law, including military detention, security detention,
detention under counterterrorism measures, involuntary confinement in medical or
psychiatric facilities, migration detention, detention for extradition, arbitrary arrests, house
arrest, solitary confinement, detention for vagrancy or drug addiction and detention of
children for educational purposes. Moreover, it also applies irrespective of the place of
10 Opinions No. 8/2020, para. 54; No. 1/2020, para. 53; No. 57/2014, para. 26; No. 49/2014, para. 23;
and No. 28/2014, para. 43. See also Human Rights Committee, general comment No. 35, para. 38;
and A/HRC/19/57, paras. 48–58.
11 A/HRC/19/57, para. 54.
12 Human Rights Committee, general comment No. 35, para. 38.
13 Ibid. See also opinion No. 83/2019, para. 68; and 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, guideline 15.
14 A/HRC/30/37, paras. 2–3.
15 Ibid., para. 11.
A/HRC/WGAD/2021/3
11
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.16
66.
The Working Group further notes that in order to ensure an effective exercise of this
right, the detained persons should have access, from the moment of arrest, to legal assistance
of their own choosing as stipulated in principle 9 of the 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. This was denied to Mr. Yusupov, as although he was
appointed a lawyer by the State, this was not a lawyer of his choice. Moreover, this lawyer
clearly did not exercise his duties diligently as he failed to intervene on behalf of Mr.
Yusupov on various occasions, including a failure to appeal the decision of 12 December
2018 (see para. 30 above). In the meantime, Mr. Yusupov was prevented from meeting the
lawyer of his choosing, which had serious adverse impacts on his ability to effectively
exercise his right to challenge the legality of his detention, denying him his rights under
article 9 (4) of the Covenant.
67.
Finally, the Working Group notes that the phone and laptop of Mr. Yusupov were
seized by the authorities without a warrant. In the context of the numerous allegations of
violations of Mr. Yusupov’s fair trial rights, which the Working Group will examine below,
the Working Group wishes to recall its jurisprudence establishing that detention is arbitrary
when evidence obtained without a search warrant is used in judicial proceedings.17 In this
case, the fact that Mr. Yusupov’s personal items were seized without a warrant supports the
Working Group’s conclusion that the authorities did not follow the necessary investigative
procedures in order to ensure that Mr. Yusupov’s detention had a legal basis. Accordingly,
the Working Group finds that Mr. Yusupov’s right to freedom from arbitrary arrest and
detention under article 9 (1) of the Covenant was violated.
68.
The Working Group therefore concludes that the detention of Mr. Yusupov lacks a
legal basis as he was not promptly presented before a judicial authority, was held
incommunicado and had his personal items seized without a warrant. In addition, his pretrial
detention was imposed in violation of article 9 (3) of the Covenant, there was a failure to
substantiate periodic review of his detention contrary to national law and in breach of article
9 (1) of the Covenant, and he was unable to challenge the legality of his detention. It is
therefore arbitrary and falls under category I of the Working Group.
ii.
Category III
69.
The source has made a series of allegations concerning the violations of Mr.
Yusupov’s fair trial rights. However, prior to examining these, the Working Group initially
observes that the pretrial hearing and the reviews of Mr. Yusupov’s continued detention were
presided over by a military judge, although Mr. Yusupov is a civilian. The Working Group
notes that the involvement of the military court is confirmed by the Government in its late
reply.
70.
The Working Group notes that it is within its mandate to assess the overall
proceedings of the court and the law itself to determine whether they meet international
standards.18 In relation to the jurisdiction of the military courts, the Working Group in its
practice has consistently argued that the trial of civilians by military courts is in violation of
the Covenant and customary international law, and that under international law, military
tribunals can only be competent to try military personnel for military offences.19 Moreover,
in the present case, the Government had the opportunity to explain the involvement of the
military judge in the case of Mr. Yusupov, but it failed to do so. The Working Group therefore
finds a breach of article 14 (1) of the Covenant.
16 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, guideline 1.
17 Opinion No. 83/2019, para. 51.
18 See opinions No. 78/2017, No. 30/2017, No. 15/2017 and No. 33/2015.
19 A/HRC/27/48, paras. 67–70. See also opinions No. 66/2019, No. 32/2018, No. 28/2018, No. 30/2017
and No. 44/2016.
A/HRC/WGAD/2021/3
12
71.
The source has also made extensive submissions concerning the violations of the right
to legal assistance of Mr. Yusupov, with the Government merely arguing in its late reply that
some witnesses were not called because they were unwell or overseas.
72.
Initially, Mr. Yusupov was denied prompt access to the lawyer of his choosing, as he
was only able to meet his lawyer privately on 24 April 2019, some five months after his initial
detention. While he was provided with a State-appointed lawyer, this clearly was not a lawyer
of his choice and indeed it appears that Mr. Yusupov was coerced into claiming otherwise
(see para. 12 above). The Working Group notes here that while the Government in its late
reply argues that Mr. Yusupov had a lawyer and gave his testimony in his lawyer’s presence,
it does not address the allegation that this lawyer was appointed by the State and in fact was
not a lawyer of Mr. Yusupov’s choosing.
73.
When Mr. Yusupov was finally able to meet with the lawyer of his choosing, access
to the case files was delayed. During the trial, Mr. Yusupov was not allowed to present
witnesses, and his right to cross-examine witnesses of the prosecution was curtailed. In these
circumstances, the Working Group finds that Mr. Yusupov’s rights under articles 14 (1) and
(3) (b), (d) and (e) of the Covenant were violated. In making this finding, the Working Group
takes specific note of the concerns expressed by the Committee against Torture in its
concluding observations on the fifth periodic report of Uzbekistan at the lack of respect of
the right to fundamental safeguards, including the right to legal assistance in the case of Mr.
Yusupov.20
74.
Moreover, the Working Group has already established that Mr. Yusupov was
interrogated repeatedly in the absence of legal counsel and while in incommunicado
detention. As the Working Group has stated previously, confessions made in the absence of
legal representation are not admissible as evidence in criminal proceedings.21 Furthermore,
the admission into evidence of a statement allegedly obtained through torture or ill-treatment
renders the entire proceedings unfair, regardless of whether other evidence was available to
support the verdict.22 The burden is on the Government to prove that statements were given
freely,23 but in this case it has not done so.
75.
Therefore, the Working Group finds that Mr. Yusupov’s right to be presumed innocent
under article 14 (2) of the Covenant and his right not to be compelled to confess guilt under
article 14 (3) (g) were violated. In making this finding, the Working Group takes special note
of the concluding observations of the Human Rights Committee on the fifth periodic report
of Uzbekistan, requiring that the prohibition of forced confessions and the inadmissibility of
torture-tainted evidence are effectively enforced in practice, including by law enforcement
officials, prosecutors and judges.24 The Working Group refers the present case to the Special
Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, for
appropriate action.
76.
The Working Group wishes to place on record its particular alarm at the uncontested
allegations by the source of the torture and ill-treatment inflicted upon Mr. Yusupov, which
were brought to the attention of the authorities and the court by his lawyer. The Working
Group considers that the failure to intervene when torture allegations have been made
amounts to a violation of the right to a fair hearing by an independent and impartial tribunal
under article 14 (1) of the Covenant.25 In making this finding, the Working Group takes due
regard of the concerns expressed by the Committee against Torture in 2020 regarding the
case of Mr. Yusupov and the failure to investigate the allegations of torture in particular.26
20 CAT/C/UZB/CO/5, paras. 29–30.
21 A/HRC/45/16, para. 53. See also opinions No. 73/2019, para. 91; No. 59/2019, para. 70; No. 14/2019,
para. 71; and No. 1/2014, para. 22. See also E/CN.4/2003/68, para. 26 (e).
22 Opinions No. 73/2019, para. 91; No. 59/2019, para. 70; No. 32/2019, para. 43; No. 52/2018, para. 79
(i); No. 34/2015, para. 28; and No. 43/2012, para. 51.
23 Human Rights Committee, general comment No. 32, para. 41.
24 CCPR/C/UZB/CO/5, para. 27.
25 Opinions No. 32/2019, para. 44; and No. 53/2018, para. 77 (b).
26 CAT/C/UZB/CO/5, paras. 9–10 and 12–13.
A/HRC/WGAD/2021/3
13
The Working Group considers that a violation of paragraphs 12 and 16 of the Guidelines on
the Role of Prosecutors also occurred.
77.
Additionally, the Working Group also takes note of the numerous other allegations by
the source concerning the overall impartiality of the court in the case of Mr. Yusupov,
allegations which the Government has chosen not to address. In this context, the Working
Group recalls that the Human Rights Committee in paragraph 19 of its general comment No.
32 argues that the requirement of competence, independence and impartiality of a tribunal in
the sense of article 14 (1) is an absolute right that is not subject to any exception. In paragraph
21 of the same general comment, the Committee has 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. Second, the tribunal must
also appear to a reasonable observer to be impartial.
78.
In the present case, the source has alleged, and the Government has not rebutted, that
the court acted with favouritism towards the witnesses presented by the prosecution while
Mr. Yusupov was not allowed to call witnesses. Moreover, as established above, the court
failed to act when credible allegations of torture and ill-treatment, and a confession obtained
through such means, were brought to its attention by the lawyer of Mr. Yusupov. The
Working Group therefore finds that the court acted in a manner that promoted the interests
of the prosecution and failed in its duty of impartiality to Mr. Yusupov, in breach of the
principle of equality of arms and article 14 (1) of the Covenant. The Working Group refers
this case to the Special Rapporteur on the independence of judges and lawyers, for
appropriate action.
79.
Furthermore, the source has submitted, and the Government has not contested, that
the trial of Mr. Yusupov was conducted behind closed doors. Moreover, the authorities made
active efforts to keep it that way by avoiding any publicity and making the lawyer sign a non-
disclosure agreement. As the Human Rights Committee states in paragraph 29 of its general
comment No. 32:
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.
80.
The Working Group has been presented with no evidence as to how the case of Mr.
Yusupov could possibly fall into any of the prescribed exceptions to the general obligation
of public trials under article 14 (1) of the Covenant, and the Government of Uzbekistan has
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.
81.
Moreover, during the closed trial, the source has made an uncontested allegation that
Mr. Yusupov was presented to the court in a cage. Recalling general comment No. 32 of the
Human Rights Committee, the Working Group observes 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.27 In the present case, such presentation
violated Mr. Yusupov’s presumption of innocence in breach of article 14 (2) of the Covenant.
82.
Further, the source has alleged, and the Government does not contest, that 6 out of 15
hearings of Mr. Yusupov’s trial were delayed for reasons such as the illness of the prosecutor
or a leak in the building. Although trial proceedings lasting just over a year overall are not
27 Human Rights Committee, general comment No. 32, para. 30. See also opinions No. 59/2020, para.
81; No. 83/2019, para. 73; No. 36/2018, para. 55; No. 79/2017, para. 62; No. 40/2016, para. 41; and
No. 5/2010, para. 30.
A/HRC/WGAD/2021/3
14
excessive per se, the Working Group notes the failure of the Government to provide any
explanation for the rescheduling of the hearings on numerous occasions for the reasons
submitted by the source. In such circumstances, the Working Group finds that the right of
Mr. Yusupov to be tried within a reasonable time frame and without undue delay under
articles 9 (3) and 14 (3) (c) of the Covenant was thus violated.28
83.
The Working Group observes that article 14 (5) of the Covenant entitles anyone
convicted of a crime to have the right to have their conviction and sentence reviewed by a
higher tribunal. In the present case, Mr. Yusupov was sentenced by the court of first instance
in January 2020 and the source has argued that since then, the lawyer of Mr. Yusupov was
not able to have a face-to-face, confidential meeting with his client until October 2020, and
that the appeal was therefore not lodged until 13 October 2020. The source has argued that
this was due to the prevailing conditions of the pandemic, while the Government has chosen
not to address the allegations.
84.
The Working Group notes that there was a delay of 10 months between the
pronouncement of the sentence by the court of first instance and the lodging of the appeal.
As the Working Group noted in its Deliberation No. 11:
If the exigencies of the prevailing public health emergency require restrictions on
physical contact, States must ensure the availability of other ways for legal counsel to
communicate with their clients, including secured online communication or
communication over the telephone, free of charge and in circumstances in which
privileged and confidential discussions can take place. Similar measures can be taken
for judicial hearings. The introduction of blanket measures restricting access to courts
and legal counsel cannot be justified and could render the deprivation of liberty
arbitrary.29
85.
In its late reply, the Government has chosen not to address the allegation that Mr.
Yusupov’s lawyer was delayed in accessing his client following the judgment of the court of
first instance for some 10 months, and it has merely stated that the lawyer met with Mr.
Yusupov. Nor has the Government made any efforts to explain what alternative measures it
had put in place to ensure that the right of Mr. Yusupov to legal assistance was preserved in
the circumstances of the pandemic. The Working Group therefore finds a breach of article 14
(5) of the Covenant.
86.
Furthermore, Mr. Yusupov was also held in solitary confinement in what appears to
be retaliation for his speaking out on behalf of other prisoners, an allegation not denied by
the Government in its late reply. The Working Group recalls that according to rule 45 of the
United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela
Rules), the imposition of solitary confinement must be accompanied by certain safeguards.
Solitary confinement 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 Nelson Mandela Rules.
87.
Finally, although the Working Group’s mandate does not cover conditions of
detention or the treatment of prisoners, it must consider to what extent detention conditions
can negatively affect the ability of detainees to prepare their defence as well as their chances
of a fair trial.30 The detention of Mr. Yusupov took place in deplorable conditions, which is
especially alarming noting his state of health. He was also denied medication and treatment
for the very serious health conditions from which he suffers. These are violations of the
Nelson Mandela Rules, in particular of rules 24, 25, 27 and 30. The Working Group refers
the case to the Special Rapporteur on the right of everyone to the enjoyment of the highest
attainable standard of physical and mental health, for appropriate action.
28 Human Rights Committee, general comment No. 35, para. 37; and general comment No. 32, para. 35.
29 A/HRC/45/16, annex II, para. 21.
30 E/CN.4/2004/3/Add.3, para. 33.
A/HRC/WGAD/2021/3
15
88.
Consequently, noting all the above, the Working Group finds that the violation of Mr.
Yusupov’s fair trial rights is of such gravity as to render his continued detention arbitrary
under category III.
89.
Finally, the Working Group also wishes to highlight that the failure to notify Mr.
Yusupov’s family of his whereabouts and the denial of family contact during his detention
constitute a violation of principles 15, 16 and 19 of the Body of Principles for the Protection
of All Persons under Any Form of Detention or Imprisonment.
Disposition
90.
In the light of the foregoing, the Working Group renders the following opinion:
The deprivation of liberty of Kadyr Yusupov, being in contravention of articles 3, 8,
9, 10 and 11 of the Universal Declaration of Human Rights and articles 2 (3), 9 and
14 of the International Covenant on Civil and Political Rights, is arbitrary and falls
within categories I and III.
91.
The Working Group requests the Government of Uzbekistan to take the steps
necessary to remedy the situation of Mr. Yusupov 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.
92.
The Working Group considers that, taking into account all the circumstances of the
case, the appropriate remedy would be to release Mr. Yusupov immediately and accord him
an enforceable right to compensation and other reparations, in accordance with international
law. In the current context of the global COVID-19 pandemic and the threat that it poses in
places of detention, the Working Group calls upon the Government to take urgent action to
ensure the immediate release of Mr. Yusupov.
93.
The Working Group urges the Government to ensure a full and independent
investigation of the circumstances surrounding the arbitrary deprivation of liberty of Mr.
Yusupov and to take appropriate measures against those responsible for the violation of his
rights.
94.
In accordance with paragraph 33 (a) of its methods of work, the Working Group refers
the present case to (i) the Special Rapporteur on the independence of judges and lawyers, (ii)
the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or
punishment and (iii) Special Rapporteur on the right of everyone to the enjoyment of the
highest attainable standard of physical and mental health, for appropriate action.
95.
The Working Group requests the Government to disseminate the present opinion
through all available means and as widely as possible.
Follow-up procedure
96.
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. Yusupov has been released and, if so, on what date;
(b)
Whether compensation or other reparations have been made to Mr. Yusupov;
(c)
Whether an investigation has been conducted into the violation of Mr.
Yusupov’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 Uzbekistan with its international obligations in line with
the present opinion;
(e)
Whether any other action has been taken to implement the present opinion.
97.
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/2021/3
16
98.
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.
99.
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.31
[Adopted on 3 May 2021]
31 Human Rights Council resolution 42/22, paras. 3 and 7.