Opinion; Subjects: RUSSIAN FEDERATION, 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.21-18967(E)
Human Rights Council
Working Group on Arbitrary Detention
Opinions adopted by the Working Group on Arbitrary
Detention at its ninety-second session, 15–19 November 2021
Opinion No. 48/2021 concerning Sharofiddin Gadoev (Russian
Federation and 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,1 on 19 March 2021, the Working Group
transmitted to the Governments of the Russian Federation and Tajikistan a communication
concerning Sharofiddin Gadoev. The Government of the Russian Federation replied to the
communication on 17 May 2021, and the Government of Tajikistan submitted a late response.
Both States are parties to the International Covenant on Civil and Political Rights.
3.
The Working Group regards deprivation of liberty as arbitrary in the following cases:
(a)
When it is clearly impossible to invoke any legal basis justifying the
deprivation of liberty (as when a person is kept in detention after the completion of his or her
sentence or despite an amnesty law applicable to him or her) (category I);
(b)
When the deprivation of liberty results from the exercise of the rights or
freedoms guaranteed by articles 7, 13, 14, 18, 19, 20 and 21 of the Universal Declaration of
Human Rights and, insofar as States parties are concerned, by articles 12, 18, 19, 21, 22, 25,
26 and 27 of the Covenant (category II);
(c)
When the total or partial non-observance of the international norms relating to
the right to a fair trial, established in the Universal Declaration of Human Rights and in the
relevant international instruments accepted by the States concerned, is of such gravity as to
give the deprivation of liberty an arbitrary character (category III);
(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/2021/48
General Assembly
Distr.: General
15 December 2021
Original: English
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Submissions
Communication from the source
4.
Sharofiddin Gadoev is a citizen of Tajikistan, born in 1985. Mr. Gadoev is a political
opposition activist and leader of the People’s Movement for Reform and Development in
Tajikistan. He usually resides in exile in the Netherlands.
a.
Context
5.
According to the source, Mr. Gadoev served as deputy head of Group 24, an
opposition movement formed in 2012 by Tajik anti-corruption activists seeking free and fair
elections, respect for the rule of law and recognition for victims of violent suppression by
Tajik security services. Two years after its formation, the Government of Tajikistan outlawed
the movement, referring to it as an “extremist” group. Group 24 members have reportedly
been subsequently threatened, attacked, arrested and arbitrarily detained by Tajik authorities.
In March 2015, the head of Group 24 was allegedly murdered in Istanbul by the Tajik
intelligence services.
6.
The source adds that Mr. Gadoev paid a high price for his involvement with Group
24. Faced with threats of imprisonment and death, he reportedly fled Tajikistan to continue
his activism in exile in the Netherlands. In 2018, Mr. Gadoev, along with other exiled
activists, founded the People’s Movement for Reform and Development in Tajikistan, with
the aim of mobilizing Tajik citizens in the lead-up to the elections held in Tajikistan in 2020.
To advance the Movement’s objectives, after being contacted by the Russian intelligence
services to discuss his work, Mr. Gadoev arranged to meet with high-level government
officials in Moscow, where almost 2 million Tajiks live and work. Mr. Gadoev was
reportedly promised meetings with individuals such as the Secretary of the Security Council
of the Russian Federation.
b.
Arrest and detention
7.
The source reports that, on 13 February 2019, Mr. Gadoev left for the Russian
Federation. In the evening on 14 February 2019, in Moscow, he was met by two individuals
from the Security Council of the Russian Federation, who said that they would take him to a
meeting with an authority in the Presidential Administration, but instead they allegedly
abducted Mr. Gadoev in a premeditated joint operation by the Russian and Tajik intelligence
services.
8.
According to the source, members from the Ministry of Internal Affairs and Federal
Security Service of the Russian Federation stopped Mr. Gadoev’s car in a parking lot,
handcuffed him, placed a plastic bag over his head, sealed the bag over his head with tape
and forced him into another vehicle without any arrest warrant or reasoning provided. The
source adds that Mr. Gadoev was beaten by members of the Ministry of Internal Affairs and
the Security Service, who confiscated his personal documents and belongings, including his
Dutch residence permit and mobile phone.
9.
With his personal belongings confiscated, Mr. Gadoev was reportedly driven to an
airport in Moscow where, bypassing passport control, he was placed on a commercial flight
of Somon Air to Dushanbe. For the duration of the flight, Somon Air personnel reportedly
joined Tajik intelligence agents in beating Mr. Gadoev, who was kept bent at the waist for
the duration of the flight; passengers sat behind them in economy class while the abuse
continued. According to the source, Somon Air is owned by the chief of Tajikistan’s largest
commercial bank, who is the brother-in-law of the President of Tajikistan.
10.
The source notes that, upon landing in Dushanbe, Mr. Gadoev was taken to the
basement of a building run by the Ministry of Internal Affairs of Tajikistan, where he was
reportedly detained outside the criminal justice system, against the norms of international
law, and without a warrant, as required by domestic and international law.
11.
The source adds that, due to the dangerous nature of his work, approximately one
week before his trip, Mr. Gadoev had recorded a video stating: “If you see this video, it means
[that] I have been murdered, kidnapped or that I have gone missing … If I suddenly turn up
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[…] declaring that I am in Tajikistan and that I have returned of my own free will, you must
not believe this.”
12.
The source reports that, on 15 February 2019, the day after Mr. Gadoev’s abduction,
the Ministry of Internal Affairs of Tajikistan publicly announced that he had voluntarily
returned to Tajikistan. Under threat from an operations group commanded by generals of the
National Security Council, Mr. Gadoev and two of his relatives were allegedly forced to
appear in staged videos, stating that he had returned to Tajikistan of his own accord. The
source adds that that was not the first example of the Government’s campaign of open
persecution against Mr. Gadoev’s relatives. On 13 June 2016, Mr. Gadoev’s father died,
allegedly as a result of physical torture at the hands of Tajik law enforcement interrogators.
Subsequently, an elderly relative of Mr. Gadoev became seriously ill, while living in a
constant state of fear and pressure, and his family members’ health, families and property
have come under threat by the Government.
13.
The source alleges that Mr. Gadoev was continuously beaten and denied access to
legal representation and due process. He also endured severe psychological torment, given
that he was provided three options as an ultimatum: to be tortured and killed; to be
imprisoned; or to cooperate with the officials and remain under their control.
14.
The source reports that, on 16 February 2019, the head of the State Committee for
National Security of Tajikistan told Mr. Gadoev that his future work would be financed if he
cooperated with Tajik officials by condemning the activists of opposition groups globally.
He outlined a proposal by which 17 global activists would be forcibly returned to Tajikistan
to be inducted into a new group, led by Mr. Gadoev but controlled by the Government of
Tajikistan. Furthermore, five women were allegedly to be used as sexual pawns through
which to seduce the activists. Mr. Gadoev was reportedly also told that he must support the
policies of the President of Tajikistan and his son, who would partake in the presidential
election in 2020.
15.
According to the source, during his entire detention, Mr. Gadoev was never once taken
to a police station for formal documentation or arrest proceedings. He was held without any
formal charges and without due process for over two weeks. It was reportedly only after
persistent intervention by the global human rights community, including European
diplomatic corps, that Mr. Gadoev was released on 2 March 2019.
16.
The source alleges that the kidnapping operation and Mr. Gadoev’s detention were
both approved at the highest levels in the Russian Federation and Tajikistan and served as
direct retaliation for Mr. Gadoev’s work in protesting against the Government of Tajikistan
and revealing its rampant corruption. The source adds that such incidents are an all too
common experience for activists in Tajikistan, who are plagued by authoritarian rule and
battle corruption at every level of the Government.
17.
The source adds that, while Mr. Gadoev is no longer in detention, his life reportedly
remains in peril, and he cannot freely visit his remaining family members who are in
Tajikistan, given that he is continuously experiencing pressure from the Government. In
addition, Mr. Gadoev has received word from various sources, on several occasions, that
Tajik authorities are allegedly gathering information on his movements to prepare an
assassination plot against him abroad, along with at least two other individuals, a blogger and
journalist and an opposition leader.
c.
Analysis of violations
18.
The source asserts that the detention of Mr. Gadoev constituted an arbitrary
deprivation of his liberty falling within categories I, II and III and V of the arbitrary detention
categories referred to by the Working Group when considering cases submitted to it.
i.
Category I
19.
The source submits that the Government of Tajikistan did not invoke any legal basis
for Mr. Gadoev’s arrest and detention. It is alleged that Tajik authorities arbitrarily kidnapped
and arrested him and failed to promptly inform him of the reasons for doing so, either verbally
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or in writing, or of any charges against him, as prescribed by article 19 of the Constitution of
Tajikistan. In fact, no charges were ever brought against Mr. Gadoev.
20.
According to the source, the circumstances in the present case clearly violate
international and domestic law, namely, article 9 of the Universal Declaration of Human
Rights, articles 9 (2) and 14 (3) of the International Covenant on Civil and Political Rights
and article 19 of the Constitution of Tajikistan, thereby rendering Mr. Gadoev’s arrest legally
baseless and his detention arbitrary under category I.
ii.
Category II
21.
The source submits that Mr. Gadoev was transnationally arrested and kidnapped based
on his status as a political opposition activist and his membership in Group 24 and the
People’s Movement for Reform and Development in Tajikistan, political groups that do not
have any terrorist characteristics or affiliations. The source adds that the denunciation by
Tajikistan of those groups has been widely acknowledged by the international community as
having been motivated by political, rather than true national security, reasons. Under
international free expression principles, such a designation does not fall within the recognized
exceptions to freedom of expression and association and cannot be considered a legal basis
for detaining a person.
22.
The source therefore asserts that, by depriving Mr. Gadoev of his freedom of
expression through his work with political opposition groups, the Government of Tajikistan
has violated article 19 of the Universal Declaration of Human Rights and article 19 of the
Covenant, as well as articles 28 and 30 of the Constitution of Tajikistan, giving Mr. Gadoev’s
deprivation of liberty an arbitrary character under category II.
iii.
Category III
23.
The source submits that the Government of Tajikistan has violated several norms of
international human rights law relating to fair trial guarantees in relation to Mr. Gadoev,
including the principle of the presumption of innocence enshrined in article 11 of the
Universal Declaration of Human Rights, article 14 (2) of the Covenant and article 20 of the
Constitution of Tajikistan. The source adds that torture is prohibited by article 5 of the
Universal Declaration of Human Rights, article 7 of the Covenant and article 18 of the
Constitution.
24.
The source specifies that the arbitrary character of Mr. Gadoev’s deprivation of liberty
by the Government of Tajikistan is established by the nature of his transnational kidnapping
and arrest, wherein he was not presented with an arrest warrant or charges against him, the
denial of his right to a prompt legal defence and the non-observance of his right to an effective
remedy and the presumption of innocence, under articles 8 and 11 of the Universal
Declaration of Human Rights and article 14 of the Covenant.
25.
The source notes that articles 9 (2) and 14 (3) (a) of the Covenant enshrine the right
of a detainee to be informed of the charges against him or her. The source refers to the Human
Rights Committee’s general comment No. 35 (2014) on liberty and security of person, in
which the Committee sets out two additional requirements for the benefit of a person being
detained, namely, that the detainee must be informed, at the time of arrest, of the reasons for
the arrest and that the detainee must be promptly informed of any charges against him or her.
The source notes that principles 10 to 13 of the Body of Principles for the Protection of All
Persons under Any Form of Detention or Imprisonment state that those arrested must be
informed of the reason for arrest.
26.
The source submits that Mr. Gadoev was not informed at the time of arrest of the
reasons for his arrest, nor was he ever informed of any charges against him that would justify
his arrest.
27.
The source submits that Mr. Gadoev was never, either after his alleged kidnapping
and arrest in the Russian Federation or during his detention in Tajikistan, provided with legal
assistance, nor was he informed of that right as mandated by article 14 (3) (d) of the Covenant,
principle 11 of the Body of Principles and principle 3 of the United Nations Principles and
Guidelines on Access to Legal Aid in Criminal Justice Systems.
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28.
According to the source, article 11 of the Universal Declaration of Human Rights and
article 14 of the Covenant enshrine the right to a fair trial and the right to be presumed
innocent until proven guilty, whereas article 8 of the Universal Declaration of Human Rights
provides for an individual’s right to an effective remedy. In addition, article 20 of the
Constitution of Tajikistan states that no one is considered guilty of committing a crime until
the entry of the court verdict into legal force.
29.
The source submits that, despite the established international law outlining those
requirements, the observance of norms relating to trials in Tajikistan repeatedly fail to meet
international fair trial standards. Tajikistan is allegedly not a democratic country in which the
fundamental rights of citizens are respected, or where there is independence and separation
of powers, but it is rather ruled by a fully authoritarian regime. The source notes that the
Government has increasingly cracked down on civil society and dissenters, thereby violating
the constitutionally recognized freedom of expression. The source adds that the Government
has denied detained individuals the rights surrounding a fair trial and immediate access to a
defence attorney.
30.
The source submits that Mr. Gadoev’s kidnapping and detention were carried out
within that context of full authoritarianism, given that the State of Tajikistan failed to observe
the minimum international standards of due process guaranteed by the Universal Declaration
of Human Rights. Tajikistan was therefore required to provide Mr. Gadoev a fair hearing
before an impartial and independent judicial body. The source notes that the right to be tried
by an impartial and independent tribunal is absolute and cannot afford any exceptions, and
the requirement of independence includes the independence of the judiciary from political
interference by the executive branch or the legislature.2
31.
According to the source, Mr. Gadoev was treated as guilty prior to being provided an
opportunity for a hearing, and before an investigating judge had heard him as required by
law. The very act of detaining him in such a way, without access to legal due process of any
kind, did not accord him his right to the presumption of innocence. He was treated as though
already found guilty of the most heinous crime, when he was allegedly subjected to physical
abuse and psychological torture; from the moment of his kidnapping, members of the
Ministry of Internal Affairs and the Security Service beat Mr. Gadoev, Somon Air personnel
joined Tajik intelligence agents in beating him during his forcible transfer to Tajikistan, and
he was continuously beaten throughout the duration of his detention in Tajikistan. The source
adds that Mr. Gadoev also endured severe psychological torment, including through the
ultimatum with three options of torture and death, imprisonment, or complete control by
government officials, with no opportunity for relief. The source adds that the Government of
Tajikistan has failed to uncover and produce any clear and sufficient evidence against Mr.
Gadoev to support his transnational arrest or his detention in Tajikistan.
32.
The source submits that the sole reason for detaining Mr. Gadoev was to punish him
for his opinions and support for opposition movements, in violation of his freedom of
expression, guaranteed under both domestic and international law. Due to the aforementioned
reasons, Mr. Gadoev’s wrongful detention lacked any basis and violated international legal
principles, thereby rendering his detention arbitrary under category III.
iv.
Category V
33.
The source notes that equality before the law and non-discrimination are vital
principles of international human rights law and adds that discrimination based on divergent
political opinions is a violation of both international law and the domestic law of Tajikistan.
34.
The source submits that, in the present case, Mr. Gadoev made public his political
opinions that contested the alleged corrupt and authoritarian Government of the President of
Tajikistan. Mr. Gadoev used peaceful means of sharing his opinions and first-hand accounts,
in order to facilitate a campaign of awareness among the Tajik people. He was specifically
targeted by the Government of Tajikistan, because he held and shared political opinions that
those in power perceived as a threat. The source adds that Mr. Gadoev’s illegal kidnapping
2 Human Rights Committee, general comment No. 32 (2007) on the right to equality before courts and
tribunals and to a fair trial, para. 19.
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and detention are representative of forms of discrimination based on his political opinions
and his status as a human rights and political opposition activist.
35.
The source therefore submits that the Government of Tajikistan violated article 7 of
the Universal Declaration of Human Rights and article 26 of the Covenant, as well as articles
17 and 30 of the Constitution of Tajikistan, giving Mr. Gadoev’s deprivation of liberty an
arbitrary character under category V.
Response from the Government
36.
On 19 March 2021, the Working Group transmitted the allegations from the source to
the Governments of the Russian Federation and Tajikistan under its regular communications
procedure.
37.
The Working Group requested the Government of the Russian Federation to provide,
by 18 May 2021, detailed information about the arrest of Mr. Gadoev on 14 February 2019
and to clarify the legal provisions justifying Mr. Gadoev’s arrest and subsequent transfer to
Tajikistan, as well as the compatibility thereof with the obligations of the Russian Federation
under international human rights law, in particular with regard to the treaties ratified by the
State.
38.
The Working Group requested the Government of Tajikistan to provide, by 18 May
2021, detailed information about the circumstances surrounding the detention of Mr. Gadoev
and to clarify the legal provisions justifying his deprivation of liberty, as well as the
compatibility thereof with the obligations of Tajikistan under international human rights law,
in particular with regard to the treaties ratified by the State.
39.
The Government of Tajikistan submitted its reply on 1 June 2021. The reply was late,
and the Working Group notes that the Government did not request an extension of the time
limit for its reply, as provided for in paragraph 16 of the Working Group’s methods of work.
Therefore, the Working Group cannot accept the reply as if it had been submitted within the
time limit.
40.
The Government of the Russian Federation submitted its reply on 17 May 2021. It
explains that, after conducting an internal audit through the database of the Ministry of the
Interior of the Russian Federation, it established that Mr. Gadoev was on an international
wanted list and that an arrest warrant by the authorities in Tajikistan was issued against him
for a number of alleged offences. He was also wanted by the authorities in Kyrgyzstan.
41.
However, the Government explains that, while there are records of Mr. Gadoev having
been in the territory of the Russian Federation in 2010, as well as in the period 2012–2013,
there are no further records of him being present in the territory of the State since that time.
More specifically, there is no record of him crossing the border of the Russian Federation
since then, and no aeroplane tickets with his name were issued for a flight to Dushanbe during
the period of interest to the Working Group. The Government also notes that there were no
extradition requests in respect of Mr. Gadoev and that there have therefore been no decisions
taken concerning his extradition or deportation. The Government adds that no complaints
have been received from Mr. Gadoev or his legal representatives concerning his alleged
abduction or threats of forceful removal from the Russian Federation. The Government
respectfully submits that the allegations concerning the treatment of Mr. Gadoev in Tajikistan
fall outside the jurisdiction of the Russian Federation.
Additional comments from the source
42.
The reply of the Government of the Russian Federation was transmitted to the source
on 20 May 2021, and the reply of the Government of Tajikistan was transmitted to the source
on 3 June 2021. In a response dated 16 June 2021, the source reiterated that Mr. Gadoev had
travelled to Moscow from 28 to 29 November 2018, a trip that was related to his subsequent
trip to Moscow on 13 February 2019. The source confirms that Mr. Gadoev was subsequently
arrested in Moscow on 14 February 2019 and forcibly transferred to Tajikistan. While
reiterating the points made in the initial submissions, in relation to the replies of both the
Russian Federation and Tajikistan, the source maintains that the detention of Mr. Gadoev
was arbitrary and in violation of international law under categories I, II, III and V.
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Additional comments from the Government of the Russian Federation
43.
In a letter dated 7 September 2021, as an exceptional measure, the Working Group
asked the Government of the Russian Federation for further clarifications, explaining that it
had transmitted a similar letter to the Government of Tajikistan in relation to the present case.
The Working Group informed the Government that, in its response, the Government of
Tajikistan had noted, inter alia, that Mr. Gadoev arrived by plane in Dushanbe from the
Russian Federation in February 2019. The Working Group explained that, in accordance with
paragraph 15 of the Working Group’s methods of work, the response from the Government
of the Russian Federation had been sent to the source for further comments. In those
comments, the source reiterated that Mr. Gadoev had travelled to Moscow from 28 to 29
November 2018, a trip that was related to his subsequent trip to Moscow on 13 February
2019. The Working Group requested the Government of the Russian Federation to submit
any additional information on those submissions by 8 November 2021.
44.
On 17 September 2021, the Government of the Russian Federation submitted further
comments reiterating its initial reply, namely, that the register of foreign nationals of the
Ministry of the Interior noted the presence of Mr. Gadoev in the Russian Federation only in
2010 and during the period 2012–2013. According to the Government, there is no further
information on the register of Mr. Gadoev having subsequently crossed the border of the
Russian Federation. The Government argues that its internal systems have no record of
aeroplane tickets having been purchased in the name of Mr. Gadoev for the period of interest
to the Working Group.
Discussion
45.
Taking into account that the allegations submitted by the source concern two
Governments, the Working Group will examine allegations in relation to each of them in
turn.
46.
Before moving to such consideration, as a preliminary issue, the Working Group
wishes to address the fact that Mr. Gadoev is no longer deprived of his liberty and has in fact
left Tajikistan. Notwithstanding that fact, the Working Group notes that, in accordance with
paragraph 17 (a) of its methods of work, it reserves the right to render an opinion as to
whether or not the deprivation of liberty was arbitrary, notwithstanding the release of the
person concerned. In the present case, the Working Group is of the view that the allegations
made by the source are extremely serious and therefore will proceed to deliver its opinion
thereon.
a.
Allegations concerning the Russian Federation
47.
The Working Group thanks the source and the Government of the Russian Federation
for their timely submissions.
48.
In determining whether the deprivation of liberty of Mr. Gadoev was arbitrary, the
Working Group has regard to the principles established in its jurisprudence to deal with
evidentiary issues. If the source has presented a prima facie case for breach of the
international law 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.3
49.
The Working Group takes note of the diametrically opposing submissions that it has
received from the source and the Government. The source has argued that Mr. Gadoev was
abducted by the Russian and Tajik intelligence services in a premeditated operation carried
out in Moscow on 14 February 2019. The source alleges that Mr. Gadoev was effectively
kidnapped by those authorities and reportedly driven to an airport in Moscow where,
bypassing passport control, he was placed on a commercial flight to Dushanbe and forcibly
removed from the Russian Federation. The Working Group observes that, in its late reply,
3 A/HRC/19/57, para. 68.
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the Government of Tajikistan indicated that Mr. Gadoev had arrived in Dushanbe by plane
from the Russian Federation, although it provided no further details of the events.
50.
The Government of the Russian Federation, in turn, explains that, after conducting an
internal audit through the database of the Ministry of the Interior of the Russian Federation,
it established that, although there are records of Mr. Gadoev being in the territory of the
Russian Federation in 2010, as well as in the period 2012–2013, there are no further records
of him being present in the territory of the Russian Federation since that time. More
specifically, there is no record of him crossing the border of the Russian Federation since
then and no aeroplane tickets with his name were issued for the flight to Dushanbe for the
period of interest to the Working Group. The Government notes that there are no extradition
requests in respect of Mr. Gadoev and that there have therefore been no decisions taken
concerning his extradition or deportation. The Government adds that no complaints have
been received from Mr. Gadoev or his legal representatives concerning his alleged abduction
or threats of forceful removal from the Russian Federation. The Working Group notes that
the Government provided the same reply to the Working Group’s second enquiry, in which
the Working Group pointed out that both the Government of Tajikistan and the source
maintained that Mr. Gadoev arrived in Dushanbe from the Russian Federation on 14 February
2019.
51.
This is a considerable discrepancy between the two accounts; the source alleges the
presence of Mr. Gadoev in the Russian Federation, whereas the Government of the Russian
Federation denies it. However, the Working Group notes the carefully chosen wording of the
denial by the Government, which indicated that there was no official record of Mr. Gadoev
having been in the Russian Federation during the time in question. Given that the source’s
allegations involve a secret de facto collusion of Russian and Tajik authorities to kidnap Mr.
Gadoev, the Working Group is not surprised that official records do not reflect his presence
in the country. The Government of the Russian Federation does not appear to have conducted
any investigation into those very serious allegations.
52.
Notably, although the Government of Tajikistan does not provide any details of Mr.
Gadoev’s arrival in Dushanbe, it is clear from its late response that he arrived there by
aeroplane from the Russian Federation, which confirms the submission of the source that Mr.
Gadoev was indeed in the territory of the Russian Federation prior to his arrival in Tajikistan.
The Government of the Russian Federation provides no explanation to rebut the source’s
submissions as to how Mr. Gadoev came to be in Dushanbe on 14 February 2019.
53.
The Working Group therefore accepts as credible the allegations that Mr. Gadoev was
in the Russian Federation prior to his arrival into Dushanbe on 14 February 2019 and, noting
the absence of any information from the Government of the Russian Federation concerning
the circumstances of his departure from the Russian Federation and arrival in Tajikistan,
accepts as credible the submissions made by the source.
54.
The Working Group recalls the following section on State responsibility in cases of
secret detention by proxy from the joint study on global practices in relation to secret
detention in the context of countering terrorism:
Secret detention, involving the denial or concealment of a person’s detention,
whereabouts or fate has the inherent consequence of placing the person outside the
protection of the law. The practice of “proxy detention”, where persons are transferred
from one State to another outside the realm of any international or national legal
procedure (“rendition” or “extraordinary rendition”) for the specific purpose of
secretly detaining them, or to exclude the possibility of review by the domestic courts
of the State having custody of the detainee, or otherwise in violation of the well-
entrenched principle of non-refoulement, entails exactly the same consequence. The
practice of “proxy detention” involves the responsibility of both the State that is
detaining the victim and the State on whose behalf or at whose behest the detention
takes place.4
4 A/HRC/13/42, para. 36. See also opinions No. 11/2018, No. 23/2020 and No. 42/2020.
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55.
Moreover, in its resolution 37/3, the Human Rights Council stressed that no one
should be held in secret detention, and urged States to ensure that all persons held in detention
under their authority were provided with access to the courts and to investigate all alleged
cases of secret detention, including under the pretext of countering terrorism.5
56.
As the Working Group has previously observed, 6 international law regarding
extradition provides for procedures that must be observed by countries in arresting, detaining
and returning individuals to face criminal proceedings in another country and in ensuring that
their right to a fair trial is protected. Furthermore, individuals should not be expelled to
another country when there are substantial grounds for believing that their life or freedom
would be at risk.7 The risk of arbitrary detention in the receiving State must be among the
elements taken into consideration.8
57.
Moreover, the Working Group specifically refers to its call upon all States to refrain
from the forcible transfer of individuals, which circumvents due process established by
international human rights law and disregards the safeguards against arbitrary detention.9
58.
In the present case, Mr. Gadoev was de facto kidnapped by the Russian and Tajik
authorities, which completely ignored all extradition procedures, on 14 February 2019, after
being lured by the pretence of a meeting with a high-level official; he was handcuffed, had a
plastic bag put over his head and taped in place, was forced into a vehicle, was taken to the
airport and was forcibly removed from the Russian Federation to Tajikistan. The Working
Group concludes that that placed Mr. Gadoev entirely outside the protection of the law, in
violation of his right to be recognized as a person before the law under article 6 of the
Universal Declaration of Human Rights and article 16 of the Covenant.
59.
Every aspect of Mr. Gadoev’s right to liberty and security of person was violated, and
he was subjected to arbitrary deprivation of liberty in breach of his rights under article 9 of
the Universal Declaration of Human Rights and article 9 of the Covenant, violations which
fall under category I.
60.
The Working Group recalls that the State which forcibly removes an individual from
its jurisdiction cannot absolve itself from responsibility over what happens to that person in
the jurisdiction to which he or she has been forcibly removed. It has therefore consistently
held that the removing State is fully responsible for the human rights violations suffered by
the individual in the receiving State.10 In the present case, the Government of the Russian
Federation is therefore also responsible for the violations of Mr. Gadoev’s rights in
Tajikistan.
b.
Allegations concerning Tajikistan
61.
In the absence of a timely response from the Government of Tajikistan, the Working
Group has decided to render its opinion on the allegations concerning Tajikistan, in
conformity with paragraph 15 of its methods of work.
62.
In determining whether Mr. Gadoev’s detention was 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 law constituting arbitrary
detention, the burden of proof should be understood to rest upon the Government if it wishes
to refute the allegations.11 In the present case, the Government has chosen not to challenge
the prima facie credible allegations made by the source in a timely manner.
63.
The source has argued that the detention of Mr. Gadoev in Tajikistan from 14
February to 2 March 2019 was arbitrary and falls under categories I, II, III and V. In its late
5 Human Rights Council resolution 37/3, paras. 8–9.
6 See, e.g., opinions No. 57/2013, No. 2/2015, No. 11/2018 and No. 23/2020.
7 A/HRC/4/40, paras. 44–45.
8 See opinions No. 23/2020 and No. 42/2020; see also A/HRC/48/55, paras. 51–60.
9 A/HRC/48/55, paras. 51–60.
10 See, for example, opinions No. 23/2020, 47/2020, 51/2020, 84/2020 and 88/2020. See also
A/HRC/48/55, para. 60.
11 A/HRC/19/57, para. 68.
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response, the Government denied those allegations and argued that Mr. Gadoev was not
detained during that period of time in Tajikistan, but rather was placed under a recognizance
not to leave the country or change his domicile. The Government adds that, while he was in
Tajikistan during that period, he freely moved around the country and that, on 2 March 2019,
upon the receipt of a new passport for overseas travel, he fled from the territory of the State.
Consequently, the Government denies the allegations of the detention of Mr. Gadoev during
the period between 14 February and 2 March 2019.
64.
The Working Group, however, observes that, in its late response, the Government has
failed to explain the alleged criminal offences that Mr. Gadoev was charged with, which
would warrant his being placed under the recognizance as described by the Government. The
Government has also failed to explain the process that led to the imposition of the
recognizance or how that process satisfied due process guarantees. The only explanation
provided relates back to an investigation initiated in 2012 concerning alleged economic
crimes, but no information concerning the results of that investigation, or indeed any charges
against Mr. Gadoev, were provided.
65.
Moreover, the Government argues that Mr. Gadoev arrived in Dushanbe voluntarily
on 14 February 2019 and presented himself to the police. The Government, however,
provides no explanation as to why someone who has chosen to live in exile, who has clearly
expressed a fear of being forcibly removed to Tajikistan and even pre-recorded a video
statement to clarify that he would never voluntarily enter Tajikistan, would then proceed to
do just the opposite.
66.
The Working Group notes that it has already established that Mr. Gadoev was forcibly
removed from the Russian Federation to Tajikistan through secret collusion between the
Russian and Tajik authorities. In that regard, the Working Group wishes to emphasize that
Tajikistan is therefore responsible for the violations of Mr. Gadoev’s rights in the Russian
Federation.
67.
The Working Group accepts as credible the source’s submissions that, following Mr.
Gadoev’s forced transfer to Tajikistan, he was deprived of his liberty. Furthermore, the
Working Group considers that Mr. Gadoev’s right to liberty and security of person was
severely violated, because he was detained without a warrant, was never informed of the
reasons for his arrest, denied legal assistance from the moment of his detention and denied
the right to challenge the legality of his detention, which constitutes multiple violations of
every aspect of article 9 of the Universal Declaration of Human Rights and article 9 of the
Covenant. The Working Group therefore finds that his detention was arbitrary and falls under
category I.
68.
Furthermore, although the Government has denied that Mr. Gadoev was persecuted
for his political activities, and in fact in its late reply argued that Mr. Gadoev has never
engaged in politics and was not considered to be a political opponent, the Working Group
recalls the concluding observations of the Human Rights Committee on the third periodic
report of Tajikistan submitted under the Covenant, in which the Committee noted with
concern the persecution of members of the opposition movement, Group 24, which had been
declared as “extremist”, including prosecutions and convictions.12 It is therefore clear that
Group 24 in Tajikistan, which the Government does not deny Mr. Gadoev was a part of, is
in fact an opposition movement in the country.
69.
The Working Group recalls that, when arguing that Mr. Gadoev was not involved in
politics and has not been persecuted for political activities, but rather because of alleged
economic crimes, the Government in its late reply provided no account of the alleged actions
of Mr. Gadoev that might be construed as criminal activity in the context of economic or
other crimes. As noted above, the only explanation provided related back to an investigation
initiated in 2012 concerning alleged economic crimes, but no information concerning the
results of that investigation of, or indeed any charges against, Mr. Gadoev were provided.
70.
In the light of the foregoing, the Working Group recalls Human Rights Council
resolution 24/5, in which the Council reminded States of their obligation to respect and fully
12 CCPR/C/TJK/CO/3, para. 53.
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11
protect the rights of all individuals to assemble peacefully and associate freely, online as well
as offline, including in the context of elections, and including persons espousing minority or
dissenting views or beliefs, human rights defenders, trade unionists and others.
71.
Detention purely due to the peaceful exercise of rights protected by the Covenant is
arbitrary,13 and that is exactly what happened to Mr. Gadoev; the Working Group considers
that the sole reason for his detention in the Russian Federation and Tajikistan was his peaceful
exercise of his rights under articles 19 and 21 of the Universal Declaration of Human Rights
and articles 19 and 25 of the Covenant. The right to freedom of opinion and expression
protects expression even when it may shock, offend or disturb,14 or which may insult an
individual or group,15 or criticize an institution.16 As stated by the Special Rapporteur on the
promotion and protection of the right to freedom of opinion and expression:
Freedom of expression can be exercised through any sort of medium. This includes
the right to participate in demonstrations and peaceful protests staged by social sectors
or organizations that wish to show their discontent with public policies, natural
resource development contracts, the attitudes adopted by civil servants or some other
situation.17
72.
Moreover, there is no information before the Working Group to suggest that the
exceptions to the freedom of expression as stipulated in article 19 (3) of the Covenant,
namely, respect for the rights, freedoms or reputations of others, national security, public
safety, public order or public health or morals, would apply in the present case. The
Government has provided no explanation as to how the arrest and detention of Mr. Gadoev
was necessary to protect any of those interests. Importantly, there is no information to suggest
that Mr. Gadoev has ever advocated violence or incited discrimination or hostility. There has
been no evidence provided that he has ever been accused of any form of violence or
incitement to violence. The Working Group therefore finds the arrest of Mr. Gadoev to have
been the result of his exercise of rights under article 19 of the Universal Declaration of
Human Rights and article 19 of the Covenant.
73.
The Working Group considers that the right of Mr. Gadoev under article 21 of the
Universal Declaration of Human Rights and article 25 of the Covenant, to take part in the
conduct of public affairs, has been violated, given that his arrest was directly linked to his
engagement in the opposition party to the Government. The Working Group recalls that the
Human Rights Committee, in its general comment No. 25 (1996) on participation in public
affairs and the right to vote, emphasized that citizens also took 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.18 The Working Group finds the arrest of Mr.
Gadoev to be the result of his exercise of rights under article 21 of the Universal Declaration
of Human Rights and article 25 of the Covenant.
74.
Taking note of the foregoing, the Working Group concludes that the arrest and
detention of Mr. Gadoev resulted from his peaceful exercise of his rights under articles 19
and 21 of the Universal Declaration of Human Rights and articles 19 and 25 of the Covenant
and were therefore arbitrary, falling under category II. The Working Group refers the case to
the Special Rapporteur on the promotion and protection of the right to freedom of opinion
and expression for appropriate action.
75.
Given its finding that the deprivation of liberty of Mr. Gadoev was arbitrary under
category II, the Working Group wishes to emphasize that no trial of Mr. Gadoev should take
place. However, while Mr. Gadoev has fled Tajikistan, he remains a wanted man there and,
while he was in the custody of Tajik authorities, the source alleges that serious violations of
his fair trial rights were perpetrated and argues that his detention therefore falls under
category III of the Working Group.
13 Human Rights Committee, general comment No. 35 (2014), paras. 17 and 35.
14 See, for example, opinion No. 33/2019.
15 See, for example, opinions No. 46/2013 and No. 4/2019.
16 See, for example, opinions No. 7/2008 and No. 35/2012.
17 A/HRC/23/40/Add.1, para. 71.
18 See also opinions No. 2/2018, No. 17/2019 and No. 66/2019.
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12
76.
The source has argued that Mr. Gadoev was never informed of the charges against
him, in violation of his rights under article 14 (3) (a) of the Covenant, and that he was denied
legal assistance, in breach of his rights under article 14 (3) (d) of the Covenant. The source
alleges that Mr. Gadoev’s right to be presumed innocent was denied, given that he was ill-
treated and tortured through severe beatings during his abduction and forcible transfer and
while in custody in Tajikistan. The Government denies the allegations, in its late reply,
arguing that Mr. Gadoev voluntarily returned to Tajikistan and was never detained while
there.
77.
The Working Group has already established as credible the submissions by the source
that Mr. Gadoev was indeed forcibly returned to Tajikistan and subsequently detained there.
Given that and given its findings under category I, the Working Group concludes that the
rights of Mr. Gadoev to be promptly informed of the charges against him and to legal
assistance, as encapsulated in articles 14 (3) (a) and (d) of the Covenant, were violated.
78.
Although the Government denies the very fact of having detained Mr. Gadoev, the
Working Group is concerned about the allegations of torture and ill-treatment made by the
source in relation to Mr. Gadoev. The treatment described reveals a prima facie breach of the
absolute prohibition of torture, which is a peremptory norm of international law and
encapsulated in the Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, principle 6 of the Body of Principles and rule 1 of the United
Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela
Rules). The Working Group refers the present case to the Special Rapporteur on torture and
other cruel, inhuman or degrading treatment or punishment for further consideration.
79.
The source has also argued that Mr. Gadoev was denied the right to be tried by an
independent and impartial tribunal, noting that all courts in Tajikistan lack the requisite
degree of independence from the executive. The Working Group cannot accept that
argument, given its sweeping nature. Moreover, the Working Group notes that Mr. Gadoev
was never presented before a judicial authority in Tajikistan. It is therefore unable to draw
any conclusions on the matter.
80.
However, taking note of all the findings above, the Working Group finds that the
violations of Mr. Gadoev’s fair trial rights were of such gravity as to give his detention an
arbitrary character, falling under category III.
81.
The source submits that, when detaining Mr. Gadoev, the Government of Tajikistan
violated article 7 of the Universal Declaration of Human Rights and article 26 of the
Covenant, giving Mr. Gadoev’s deprivation of liberty an arbitrary character under category
V, because his detention was a result of discrimination based on his political or other opinion.
82.
Although the Government, in its late reply, strongly contested that Mr. Gadoev was a
political opponent, the Working Group has already highlighted the concluding observations
of the Human Rights Committee, in which the Committee noted with concern the persecution
of members of the opposition movement, Group 24, which was declared as “extremist”,
including prosecutions and convictions.19
83.
It is indeed clear to the Working Group that Mr. Gadoev is a political opponent who
has been forced into exile due to persecution by the Tajik authorities. The authorities resorted
to the extraordinary measure of de facto abduction of Mr. Gadoev in another country and his
forcible transfer to Tajikistan; they subjected him to harsh treatment. There is no other reason
for that other than the political opinions of Mr. Gadoev. The Working Group therefore
concludes that the detention of Mr. Gadoev constituted a violation of international law on the
grounds of discrimination based on his political or other opinion, in breach of article 7 of the
Universal Declaration of Human Rights and article 26 of the Covenant, falling under category
V.
84.
The Working Group is mindful of the allegations by the source that a number of other
Group 24 activists have been subjected to various forms of persecution by the Tajik
authorities (see para. 5 above). Although the Government has argued that Group 24 members
are not political opponents, the Working Group has already established, on the basis of the
19 CCPR/C/TJK/CO/3, para. 53.
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13
views of the Human Rights Committee, that that is in fact the case. The Working Group
therefore calls upon the Tajik authorities to be mindful of the findings in the present case as
they may relate to the circumstances of cases of other Group 24 activists.
c.
Concluding remarks
85.
Although the Working Group has not been asked to address the situation of Mr.
Gadoev’s family, it cannot help but notice that the allegations presented by the source
concerning the harsh treatment of, and persecution against, Mr. Gadoev’s family, which has
even, allegedly, led to the death of his elderly father and left an elderly relative of Mr. Gadoev
with serious health problems, while living in a constant state of fear and pressure. While the
Government of Tajikistan, in its late reply, denied those allegations, arguing that Mr.
Gadoev’s father had passed away due to natural causes, caused by the weakness of his heart,
the Working Group wishes to express its concern for the physical and psychological integrity
of the members of Mr. Gadoev’s family, and it reminds the Government of its duty to respect
the inherent dignity of all human beings.
Disposition
86.
In the light of the foregoing, the Working Group renders the following opinion:
Regarding both the Russian Federation and Tajikistan:
The deprivation of liberty of Sharofiddin Gadoev, being in contravention of articles
6, 9, 10, 11, 19 and 21 of the Universal Declaration of Human Rights and articles 9,
14, 19, 25 and 26 of the International Covenant on Civil and Political Rights, is
arbitrary and falls within categories I, II, III and V.
87.
The Working Group requests the Governments of the Russian Federation and
Tajikistan to take the steps necessary to remedy the situation of Mr. Gadoev 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.
88.
The Working Group considers that, taking into account all the circumstances of the
case, the appropriate remedy would be to accord Mr. Gadoev an enforceable right to
compensation and other reparations, in accordance with international law.
89.
The Working Group urges the two Governments to ensure a full and independent
investigation of the circumstances surrounding the arbitrary deprivation of liberty of Mr.
Gadoev and to take appropriate measures against those responsible for the violation of his
rights.
90.
In accordance with paragraph 33 (a) of its methods of work, the Working Group refers
the present case to the Special Rapporteur on torture and other cruel, inhuman or degrading
treatment or punishment and the Special Rapporteur on the promotion and protection of the
right to freedom of opinion and expression, for appropriate action.
91.
The Working Group requests the Governments to disseminate the present opinion
through all available means and as widely as possible.
Follow-up procedure
92.
In accordance with paragraph 20 of its methods of work, the Working Group requests
the source and the two Governments to provide it with information on action taken in follow-
up to the recommendations made in the present opinion, including:
(a)
Whether compensation or other reparations have been made to Mr. Gadoev;
(b)
Whether an investigation has been conducted into the violation of Mr.
Gadoev’s rights and, if so, the outcome of the investigation;
(c)
Whether any legislative amendments or changes in practice have been made to
harmonize the laws and practices of the Russian Federation and Tajikistan with their
international obligations in line with the present opinion;
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14
(d)
Whether any other action has been taken to implement the present opinion.
93.
The Governments are invited to inform the Working Group of any difficulties that
they 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.
94.
The Working Group requests the source and the Governments 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.
95.
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.20
[Adopted on 15 November 2021]
20 Human Rights Council resolution 42/22, paras. 3 and 7.