A/HRC/WGAD/2022/77

E. 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 51/8.

E. 2 In accordance with its methods of work, 1 on 14 July 2022 the Working Group transmitted to the Government of Tajikistan a communication concerning Saidnuriddin Shamsiddinov. The Government has not replied to the communication. The State is a party to the International Covenant on Civil and Political Rights.

E. 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/2022/77 General Assembly Distr.: General 20 March 2023 Original: English A/HRC/WGAD/2022/77 2 GE.23-04102 Submissions Communication from the source

E. 4 Saidnuriddin Shamsiddinov is a Tajik citizen, born in 1985. He usually resides in the village of Navbunyod in the Vakhsh district of Khatlon Province in Tajikistan.

E. 5 According to the source, Mr. Shamsiddinov was a bailiff in the Jaloliddin Balkhi district of Khatlon Province until 2017, when he became frustrated with being harassed to accept bribes and engage in other forms of corruption and became a human rights and anti- corruption activist. He most recently worked as an activist for Campaign for Human Rights, a non-governmental organization seeking to promote and protect human rights in Tajikistan by, among other things, revealing government corruption. Mr. Shamsiddinov filed many complaints about corruption in Khatlon Province. As a result of his advocacy activities, he reportedly drew increased attention to himself from local officials.2 Context

E. 6 The source alleges that the Government of Tajikistan has severely curtailed the exercise of free speech, in particular regarding political speech or criticism of the Government, within the country, notably following the reported human rights crackdown that started in 2015. The source notes that, although article 30 of the Constitution recognizes the freedom of expression for citizens and prohibits State censorship and prosecution for criticism of the State, the Criminal Code seems to contradict this.3 For example, it is a crime to insult a State official,4 and legislation purportedly concerning extremism is reportedly used to silence critics of the Government. 5 The Islamic Renaissance Party of Tajikistan was reportedly the largest opposition party in Tajikistan until 2015, when it was formally identified in a Supreme Court decision as a terrorist organization engaged in extremist activities. This decision criminalized all future activities by the Party, including the distribution of any materials connected to it. The Supreme Court had reportedly acted in the same way in relation to several other opposition parties, such as the political collective known as “Group 24”, a year earlier. The source notes that there are no longer any significant opposition parties in Tajikistan. It also alleges that political prisoners in Tajikistan, including those accused of supporting the Islamic Renaissance Party of Tajikistan or “Group 24”, have often been subjected to torture. Circumstances precipitating the arrest and detention

E. 7 In June 2019, Mr. Shamsiddinov reportedly filed a complaint with the Prosecutor General’s Office, stating that the prosecutor of Jaloliddin Balkhi district, the prosecutor’s assistant and the prosecutor’s investigator were harassing him and demanding bribes. The source notes that the Prosecutor General’s Office declined to initiate a case against the officials identified in the complaint.

E. 8 Mr. Shamsiddinov then reportedly used Facebook to expose the alleged corruption of the officials and to criticize others for effectively permitting that corruption. Specifically, he named the President, the Director of the Anti-Corruption Agency, staff of the Executive Office of the President, the Ombudsman and the Prosecutor General (to whom he had filed his June 2019 complaint). He also sent materials, including a 32-minute-long video, entitled “Fraudsters from Balkhi: corrupted prosecutor, investigator and judiciary”, in which he himself makes a brief appearance and describes the corruption, to journalists at Radio Free Europe/Radio Liberty and other news media organizations, as well as to the leader of the 2 The source notes that, prior to the events described in the present petition, Mr. Shamsiddinov had been convicted of one offence. On 14 September 2011, the Nosiri Khusrav District Court convicted him of fraud committed through the abuse of official powers, in violation of article 247 (2) of the Criminal Code, namely seizing property from a litigant but then failing to return that property. The court declined to impose a punishment, referring to an amnesty law permitting the court discretion to withhold punishment. 3 Criminal Code, arts. 135–137 and 330. 4 Ibid., arts. 137 and 330. 5 A/HRC/35/22/Add.2, para. 16. A/HRC/WGAD/2022/77 GE.23-04102 3 Islamic Renaissance Party of Tajikistan. The news organizations reportedly declined to publish the materials but the materials were posted on Payom TV, a YouTube channel affiliated with the opposition group National Alliance of Tajikistan.

E. 9 As noted above, the Islamic Renaissance Party of Tajikistan and its leader had already been identified in Supreme Court decisions in 2015 and 2016 as extremist, rendering it unlawful for anyone to participate or assist in their activities. On 15 August 2019, the Supreme Court also identified the National Alliance of Tajikistan as an extremist organization, making it unlawful for anyone to participate or assist in its activities, including by means of Payom TV. At around the same time, the head of the State Committee for National Security reportedly initiated an investigation into whether Mr. Shamsiddinov was acting in support of extremist organizations in violation of article 307 (3) of the Criminal Code but the investigation was later terminated by the prosecutor of Khatlon Province, owing to a lack of evidence.

E. 10 In September 2019, Mr. Shamsiddinov and another bailiff were reportedly charged and tried for embezzlement causing significant harm to a citizen6 and embezzlement using official powers. 7 Mr. Shamsiddinov initially denied any wrongdoing but, under alleged pressure from officials, he admitted guilt in exchange for an offer of immunity from the prosecutors. In addition to an admission of guilt, prosecutors allegedly extracted a bribe from Mr. Shamsiddinov to secure immunity. That offer of immunity was reportedly not honoured and Mr. Shamsiddinov was tried and convicted. Although the court initially imposed a fine of 22,500 somoni and declared Mr. Shamsiddinov ineligible to hold public office for up to two years, the court later exempted him from paying the fine, referring to the amnesty law of the country. Mr. Shamsiddinov appealed the decision but was unable to change the outcome. Mr. Shamsiddinov and the other bailiff reportedly sent complaints to the President, the Supreme Court and the media describing this corruption, and Mr. Shamsiddinov began regularly criticizing government authorities in Facebook posts.

E. 11 In April 2020, Mr. Shamsiddinov and other lawyers and human rights activists working for the Campaign for Human Rights reportedly began to focus on corruption related to the Government’s response to the coronavirus disease (COVID-19) pandemic, specifically the embezzlement and improper distribution of medicines, protective equipment and other resources. The actions of Mr. Shamsiddinov and others working for the Campaign for Human Rights led to hospital administrators being fired and corruption investigations being opened but did not result in the removal of any government officials.

E. 12 Reportedly, Mr. Shamsiddinov began to speak out online about corruption more and more frequently, including about the politically motivated investigations of and court decisions against him. From July to September 2020, he used Facebook to criticize the President, ministries, various State agencies and the office of the prosecutor of Khatlon Province for engaging in corruption and abuses of power. He also wrote that investigators of the office of the prosecutor of Khatlon Province took bribes from various persons to drop charges against them. Arrest and pretrial detention

E. 13 The source reports that on 19 September 2020, Mr. Shamsiddinov was summoned to the office of the prosecutor of Vakhsh district, where he was arrested. Around the same time, employees of the office of the prosecutor searched his home. The source notes that the officials did not produce a warrant for the arrest or search issued by the court of Vakhsh district until later the same day.

E. 14 Upon his arrest, Mr. Shamsiddinov was reportedly placed in a detention cell in the local police station, where he was held for two days, and was assigned a State-appointed defence lawyer, whom he did not trust. On 21 September 2020, he was transferred to a pretrial detention centre in Bokhtar. He was reportedly first permitted to meet with two of his close relatives in the pretrial detention centre on 4 October 2020. According to the source, he did not have access to an independent lawyer until 8 October 2020, when a colleague from the 6 Criminal Code, art. 245 (2) (c). 7 Ibid., art. 245 (2) (d). A/HRC/WGAD/2022/77 4 GE.23-04102 Campaign for Human Rights took over his defence. The source notes that the office of the prosecutor of Vakhsh district permitted Mr. Shamsiddinov to meet with his chosen lawyer in the presence of government investigators on 15 October 2020, but denied all his subsequent requests to meet with his lawyer. During their meeting on 15 October, Mr. Shamsiddinov told his lawyer that he had been tortured several times by the head of the pretrial detention centre and his deputy. They had allegedly beaten his legs with a truncheon and put him in solitary confinement for up to three days. Under duress from torture, Mr. Shamsiddinov reportedly confessed to various crimes put forward by his interrogators, including that he had been supporting extremist organizations. Trial proceedings

E. 15 On 22 December 2020, Mr. Shamsiddinov was reportedly charged with one count of violation of article 346 (3) (a) of the Criminal Code (knowingly making a false denunciation against a judge, prosecutor or interrogator); two counts of violation of article 338 (1) and (2) (illegal provision of a plot of land); one count of violation of article 340 (1) (sale of forged documents); one count of violation of article 245 (2) (a), (c) and (d) (misappropriation and embezzlement causing significant harm to a citizen and by use of official powers); one count of violation of article 177 (1) (malicious evasion of child support); and one count of violation of article 247 (4) (b) (large-scale fraud).

E. 16 Mr. Shamsiddinov was reportedly tried before the court in Vakhsh district. For each of the charges against him, the Government relied primarily on witness testimony and videos of Mr. Shamsiddinov’s own confessions (which, according to the source, had been edited to omit the torture preceding the confessions). Mr. Shamsiddinov asserts that he confessed and pleaded guilty to the charges only because he had been tortured.

E. 17 The source notes that Mr. Shamsiddinov’s charges for knowingly making a false denunciation under article 346 (3) (a) of the Criminal Code stemmed from his use of Facebook to criticize government officials in September 2019 and again on various dates between July and September 2020. The State reportedly presented testimony from several of the officials allegedly defamed by Mr. Shamsiddinov, as well as from his mother’s brother, who testified that one of the corruption conspiracies that Mr. Shamsiddinov had written about on Facebook was a lie.

E. 18 The other charges brought by the prosecution reportedly related to various events spanning the previous five years. The source notes that the charges concerning malicious evasion of the payment of child support under article 177 (1) of the Criminal Code related to allegations that Mr. Shamsiddinov had failed to pay child support for 46 months to his ex- wife while their daughter was in the custody of the ex-wife’s sister. At trial, the prosecution allegedly withheld crucial contextual information and mischaracterized the testimony of witnesses. Despite Mr. Shamsiddinov’s ex-wife and mother refuting the prosecution’s allegations, the prosecution failed to drop the charges against Mr. Shamsiddinov. The source adds that all child support payments have always been paid on time and to the satisfaction of Mr. Shamsiddinov’s ex-wife.

E. 19 The source notes that the charges concerning embezzlement causing significant harm to a citizen under article 245 (2) (c) of the Criminal Code and embezzlement through the use of official power under article 245 (2) (d) concerned the alleged misappropriation of funds, a total of 8,550 somoni, while serving as senior bailiff. Mr. Shamsiddinov was reportedly audited on three occasions between 2017 and 2020 regarding those complaints, but none of those audits revealed any embezzlement by him. Shortly after his arrest, an audit commission conducted a fourth audit regarding his activities as senior bailiff between 2016 and 2017, in response to a direct order from the office of the prosecutor of Jaloliddin Balkhi district. Unlike in the previous three audits, when no embezzlement had been found, the fourth audit commission reported that Mr. Shamsiddinov had embezzled funds from persons and the State of a total value of 16,745 somoni. The source notes that the fourth audit commission did not consult previous commissions to determine why its findings differed from those of the previous commissions.

E. 20 The first charge concerning illegal provision of a plot of land under article 338 (1) (2) of the Criminal Code, as well as the charge of large-scale fraud under article 247 (4) (b), A/HRC/WGAD/2022/77 GE.23-04102 5 related to a meeting in December 2015 that he had attended with his father, during which his father collected money for the sale of land. After the transaction was completed, Mr. Shamsiddinov’s father allegedly told the buyer that he could start building while the father obtained the land registration documentation from the relevant authorities. Although the father obtained a construction permit, authorities alleged that he had never registered the land in the buyer’s name. Mr. Shamsiddinov denies being aware of any attempt to swindle the buyer. The source adds that in his taped confession, extracted by means of torture, Mr. Shamsiddinov stated that he and his father had conspired to swindle the buyer.

E. 21 The second charge related to illegal provision of a plot of land under article 338 (1) and (2) of the Criminal Code and the charge of sale of forged documents under article 340 (1) were in connection with a plot of land that Mr. Shamsiddinov had bought in July 2019 and sold in December 2019. In April 2020, which was around the time that Mr. Shamsiddinov and others working for the Campaign for Human Rights began highlighting corruption in the Government’s response to the COVID-19 pandemic, the prosecutor of Khatlon Province initiated a criminal investigation against Mr. Shamsiddinov in connection with the land sale, under the theory that the paperwork that Mr. Shamsiddinov had presented to the land registry authority may have contained an inaccuracy to the extent that the plot and building would protrude onto someone else’s land.

E. 22 During the trial proceedings, three experts reportedly testified, one claiming that the land over which Mr. Shamsiddinov claimed ownership conformed to the proper boundaries, another expert opined that the land over which he claimed ownership included someone else’s land, while a third expert opined that the land over which Mr. Shamsiddinov claimed ownership conformed to the proper boundaries but that the house he had built on that land extended beyond those boundaries, so as to encroach on land owned by someone else. Noting these discrepancies among the expert opinions, Mr. Shamsiddinov argued that the prosecution could not prove that his paperwork was inaccurate or that the location of the land or building was irregular. He noted that, because he was not responsible for drafting the land registration documents created by the land registry authority and because he had not used any forged documents to mislead the land registration authority, he could not have committed forgery. Any mistake had therefore been made in good faith.

E. 23 The source reports that, on 24 December 2020, Mr. Shamsiddinov was convicted on all counts and sentenced to eight and a half years of imprisonment, as well as deprivation of the right to hold certain positions of public employment for three and a half years. Mr. Shamsiddinov appealed his conviction and sentence several times, first to the Court of Cassation (30 December 2020), then to the Court of Supervisory Instance (9 February 2021), then to the Chairman of the Court of Khatlon Province (10 March 2021), and finally to the Supreme Court (May 2021). Each appellate court reportedly affirmed his conviction and sentence. Having exhausted his opportunities to appeal under Tajik law with respect to these matters, Mr. Shamsiddinov was transferred from the pretrial detention centre in Bokhtar to a prison in Dushanbe. Subsequent prosecution and trial

E. 24 The source reports that, in March 2021, the State opened another criminal investigation into Mr. Shamsiddinov’s activities, this time reopening the investigation started in 2019 into his alleged support of organizations such as the Islamic Renaissance Party of Tajikistan and “Group 24”, which had both been banned as extremist organizations. The State alleged that the efforts of Mr. Shamsiddinov between June and August 2019 to expose corruption among the employees of the prosecutor’s office of Jaloliddin Balkhi district and other individuals, which had indirectly led to the YouTube channel Payom TV (which is linked to a banned organization) publishing materials collated by him documenting corruption, amounted to extremism that would harm the constitutional order of Tajikistan.

E. 25 In April 2021, employees of the State Committee for National Security visited Mr. Shamsiddinov in detention and demanded that he stop using social media to denounce government officials, explaining that if he refused to do so, he would be prosecuted for his alleged extremism. Although he promised in writing to stop denouncing officials, in May 2021 he sent six more complaints to a colleague at the Campaign for Human Rights to be filed against authorities at various agencies. Later that month, the prosecutor of Bokhtar A/HRC/WGAD/2022/77 6 GE.23-04102 reportedly appointed an expert on religious matters, political science and computer science to assess whether Mr. Shamsiddinov’s online communications amounted to a call to extremist ideology associated with opposition groups such as the Islamic Renaissance Party of Tajikistan, in violation of article 307 (3) of the Criminal Code. The expert reportedly concluded that his communications did amount to a call to extremism. On 12 June 2021, the office of the prosecutor of Khatlon Province publicly announced that it was investigating Mr. Shamsiddinov for participation in the activities of an extremist organization, in violation of article 307 (3) of the Criminal Code. The source adds that “Group 24” promptly publicly denied any awareness of or connection to Mr. Shamsiddinov.

E. 26 Mr. Shamsiddinov was subsequently transferred back from prison in Dushanbe to the pretrial detention centre in Bokhtar, pending trial on the new extremism charge. His trial began in late October 2021 before the court in Bokhtar. Mr. Shamsiddinov was represented by two lawyers.

E. 27 According to the source, the evidence at the trial included the following: judicial decisions prohibiting interactions with the leader of the Islamic Renaissance Party of Tajikistan, the Party itself or Payom TV supporting extremist ideology; screenshots of Mr. Shamsiddinov’s posts on Facebook and information sent to Radio Free Europe/Radio Liberty and other news outlets detailing corruption; and the “Fraudsters from Balkhi” video and other materials compiled by Mr. Shamsiddinov that had been posted on Payom TV. The evidence also included testimony from several people stating that Mr. Shamsiddinov was responsible for the posts on Payom TV and spoke in the “Fraudsters from Balkhi” video, as well as the expert’s report concluding that the Payom TV posts represented extremist ideology. The prosecutor also presented testimony from the former bailiff who, along with Mr. Shamsiddinov, had been tried for embezzlement and had filed complaints about corruption, stating that Mr. Shamsiddinov had told him that he sent materials describing corruption to Radio Free Europe/Radio Liberty and other outlets, that he was responsible for the “Fraudsters from Balkhi” video and that he had communicated directly with the leader of the Islamic Renaissance Party of Tajikistan to request help in publicizing the video and materials.

E. 28 According to the source, Mr. Shamsiddinov testified that, although he did contact Radio Free Europe/Radio Liberty about publishing certain materials describing corruption, and although those materials were posted on Payom TV, he had not sent those materials to Payom TV at any point and had only sent them to Radio Free Europe/Radio Liberty before 15 August 2019, therefore before Payom TV was declared to be an extremist media platform. He acknowledged that he had communicated with the leader of the Islamic Renaissance Party of Tajikistan once and sent him videos, photos and audio recordings thought to demonstrate corruption in Khatlon Province. Mr. Shamsiddinov also stated that he had never been interested in politics or had any interactions with any extremist organizations, adding that when, during interrogations in connection with the charges brought against him in 2020, he had admitted to engaging in extremist activities, he did so only because he was being tortured.

E. 29 In the light of the evidence, the prosecutor of Khatlon Province argued that Mr. Shamsiddinov was guilty of disseminating information in support of extremist ideology, whereas Mr. Shamsiddinov argued that the prosecutor was simply retaliating against him for speaking out about corruption, in order to deter him from doing so again in the future.

E. 30 The source reports that the Court issued a verdict on 24 November 2021, finding Mr. Shamsiddinov guilty of a violation of article 307 (3) of the Criminal Code. He was sentenced to five years’ imprisonment for this violation, to be served consecutively with the sentence of eight and a half years handed down in December 2020. Current status

E. 31 Mr. Shamsiddinov filed an appeal against his conviction for extremism to the Court of Cassation. At that time, he was being held in correctional institution No. 7/3 in Bokhtar. On 14 December 2021, there were additional reports that he had been placed in solitary confinement, where dangerously inhospitable conditions included extremely cold temperatures, and was allegedly being subjected to torture in retaliation for his continued denunciation of State authorities. A/HRC/WGAD/2022/77 GE.23-04102 7

E. 32 In February 2022, Mr. Shamsiddinov was transferred to correctional institution No. 3 in Dushanbe. His access to his family has recently been limited. During May and June 2022, he was not permitted to call his family and they were not permitted to visit him. On 6 July 2022, a close relative was permitted to visit him in prison for the first time in several months. According to the source, his conditions of detention are extremely poor: in June 2022, he was reportedly only permitted to leave his cell once for a walk. In addition, his bedding is poor and that he does not feel that he is receiving adequate food. Analysis of violations

E. 33 The source asserts that the detention of Mr. Shamsiddinov constitutes an arbitrary deprivation of his liberty under categories I, II, III and V. a. Category I

E. 34 The source notes that incommunicado detention occurs whenever individuals are deprived of their liberty in secret for potentially indefinite periods, held outside the reach of the law, without the possibility of resorting to legal procedures, including habeas corpus.8 Mr. Shamsiddinov was reportedly arrested on 9 September 2020 but did not have access to his family until 4 October 2020. Furthermore, he did not have access to his chosen legal representative until 8 October 2020. During this period, his only access was to a State- appointed legal representative, whom he did not trust to convey information to the outside world. As a result, from the time of his arrest to the time that he was first able to access his family members, Mr. Shamsiddinov was effectively cut off from the outside world. Accordingly, the source submits that he was held incommunicado during this period, and his detention during this period falls within the scope of category I, in violation of article 9 (3) of the Covenant, articles 10 and 11 of the Universal Declaration of Human Rights and principle 19 of the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment.

E. 35 The source asserts that, as the Government’s prosecution of Mr. Shamsiddinov in 2020 was initiated as an attempt to silence his advocacy and lacked basis for many of the alleged crimes, his detention is arbitrary under category I. His prosecution and conviction reportedly relied upon confessions extracted under torture, manipulated testimony and allegations in connection with which he had been previously exonerated. He subsequently denied the confessions introduced at trial and extracted under torture. Furthermore, he was reportedly targeted, in his prosecutions both in 2019 and 2020, only after he complained formally and online about corruption within the Government of Tajikistan.

E. 36 The source also asserts that the initial basis for the Government’s investigation and prosecution of Mr. Shamsiddinov related to his allegations of corruption and criticism of government officials. The source notes that the statements that served as the basis for the Government’s claim of knowingly false denunciation were factually accurate statements. The only evidence suggesting Mr. Shamsiddinov’s claims were false was testimony from the persons he accused of corruption. By contrast, the fact that Mr. Shamsiddinov’s denunciations were factually accurate is supported not only by his own testimony but also by the materials he compiled that were published by Payom TV. Furthermore, even if some of his claims had been false, there was no evidence that he knew them to be false. Thus, the source submits that Mr. Shamsiddinov’s conviction for knowingly false denunciation was wholly unsupported by the evidence.

E. 37 Furthermore, the source reports that the first charge of illegal provision of a plot of land and the charge of large-scale fraud relied primarily on a confession extracted under torture and therefore such a confession cannot be considered legitimate evidence to constitute a legal basis for Mr. Shamsiddinov’s detention.

E. 38 With regard to the malicious evasion of child support charges, the indictment of Mr. Shamsiddinov and the conclusions of the trial court reportedly do not accurately represent 8 A/HRC/13/42, p. 2; Human Rights Committee, general comment No. 35 (2014), para. 39; and opinion No. 4/2018, para. 64. A/HRC/WGAD/2022/77 8 GE.23-04102 the testimony of his mother and ex-wife, which served as the basis of the Government’s case against him. The source notes that because the ex-wife, who is from Uzbekistan, speaks Tajik poorly, employees of the prosecutor’s office reportedly prepared a statement for her, which she was instructed to sign, asserting that Mr. Shamsiddinov neglected to pay child support. According to the source, the ex-wife has never claimed that child support payments were not adequately made and has never sought enforcement of the child support order. The source adds that the summary in the indictment of Mr. Shamsiddinov’s mother’s testimony inaccurately states that she said that no one had paid child support between January and September 2020, whereas she actually testified only that she did not have receipts showing timely payments during that period.

E. 39 With respect to the embezzlement allegations, the Government had reportedly previously conducted three audits of Mr. Shamsiddinov during the course of his career and covering the alleged incidents, all of which found that he had not engaged in any wrongdoing in the course of his work as a bailiff. The fourth audit, requested by the State when it was allegedly trying to put together a case to silence Mr. Shamsiddinov, contradicted the findings of the previous three audits by finding that there had been embezzlement. The source adds that the fourth audit committee made no attempt to contact any of the previous committees or to reconcile its findings, which were incongruous with those of the previous committees.

E. 40 Regarding the second charge of unauthorized occupation of and construction on a plot of land and the charge of sale of forged documents, the Government reportedly presented no evidence that Mr. Shamsiddinov acted with criminal intent and so, even if he had overlooked any procedural requirements, such mistakes would have been made in good faith. The source notes that three experts testifying about Mr. Shamsiddinov’s filings regarding the plot of land could not themselves agree on whether a discrepancy had taken place or the extent of any such discrepancy. The source submits that the allegation that Mr. Shamsiddinov is criminally responsible for the sale ignores the fact that there is no evidence that he forged any documents and, although the title he purchased contained some inaccuracies, his good faith reliance on that title and resale of the land does not constitute sale of forged documents.

E. 41 The source thus submits that, because the prosecutions relied on flawed evidence and because Mr. Shamsiddinov was targeted for prosecution in order to silence his dissent, the prosecutions cannot constitute a legitimate legal basis for the purposes of category I.

E. 42 Regarding Mr. Shamsiddinov’s trial for extremism, the source asserts that the State did not produce sufficient evidence to prove charges. Most significantly, the source asserts that Mr. Shamsiddinov’s confession of extremism is inadmissible and unreliable, as it was obtained under torture. Furthermore, while there is evidence that Mr. Shamsiddinov sent materials to Radio Free Europe/Radio Liberty, this does not constitute a crime because Radio Free Europe/Radio Liberty has never been identified as an extremist organization by a court order in Tajikistan. The source notes that, although the materials sent, including the “Fraudsters of Balkhi” video, were posted on Payom TV, Mr. Shamsiddinov never intended for those materials to appear on that platform or any other platform affiliated with identified extremist organizations. Furthermore, Payom TV had not been identified as extremist at the time that Mr. Shamsiddinov sent the materials to Radio Free Europe/Radio Liberty. The source adds that, although Mr. Shamsiddinov did send materials to the leader of the Islamic Renaissance Party of Tajikistan, whom a court order had already identified as an extremist, Mr. Shamsiddinov had intended those materials only to reveal corruption by certain officials. The source asserts that the sharing of information with news outlets, such as Radio Free Europe/Radio Liberty, and other activists falls well within the scope of protected freedom of expression, and thus cannot serve as evidence to establish a basis for Mr. Shamsiddinov’s detention. The source adds that the suggestion that by revealing corruption Mr. Shamsiddinov intended to overthrow the constitutional order of Tajikistan is baseless.

E. 43 The source submits that, because Mr. Shamsiddinov never participated or assisted in the activities of groups identified as extremist and because he was targeted for prosecution in order to silence his dissent, his detention for violating article 307 (3) of the Criminal Code is arbitrary. A/HRC/WGAD/2022/77 GE.23-04102 9 b. Category II

E. 44 The source notes that freedom of expression is guaranteed under article 19 of the Covenant, article 19 of the Universal Declaration of Human Rights and article 30 of the Constitution of Tajikistan.9 The source submits that all the charges brought against Mr. Shamsiddinov to justify his present detention appear to be retaliation for his previous public comments on corruption and misappropriation by government officials, and so are designed to have a chilling effect on the exercise of his freedom of expression. Furthermore, Mr. Shamsiddinov was arrested and detained for, among other charges, denunciation and extremism in the form of publicizing accurate information about the corruption of certain public authorities. Given that Mr. Shamsiddinov, who was working for the Campaign for Human Rights as a human rights activist to reveal government corruption and therefore functioning as a journalist at the time, was discussing issues at the intersection of human rights, politics and public affairs, his freedom of speech should have been protected. The fact that Mr. Shamsiddinov is allegedly being detained in part as retaliation for speaking out in defence of human rights makes the matter all the more significant.

E. 45 Recalling the restrictions to the freedom of expression provided for in article 19 (3) of the Covenant, the source asserts that the Government’s detention of Mr. Shamsiddinov fails to meet the condition of being provided by law, lacks a legitimate justification and is neither necessary nor proportionate. The source notes that, regarding the charge of extremism, article 307 (3) of the Criminal Code is overbroad and vague and so does not satisfy the condition of being provided by law under article 19 (3) of the Covenant. The prohibition of extremism in article 307 (3) of the Criminal Code appears to be arbitrary, as the use of the terms “participation”, “assistance” and “activities” is vague in the context of the political activities of opposition groups. The source also notes that individuals have a right to know what type of conduct constitutes a violation of the law and vague statutes are unenforceable.10 Mr. Shamsiddinov’s detention for violating the vague statute is therefore allegedly arbitrary.

E. 46 With regard to the extremism and denunciation charges in general, the source adds that Mr. Shamsiddinov’s statements and materials publicizing corruption cannot improperly threaten the rights or reputations of others, because they were accurate; nor can they improperly threaten the protection of national security or public order simply because they expose corruption.

E. 47 The source therefore submits that no exceptions apply to the Government’s restrictions on Mr. Shamsiddinov’s right to freedom of expression and the Government’s detention and continued prosecution of him are arbitrary insofar as they follow from his exercise of free speech. c. Category III

E. 48 In the light of article 9 of the Covenant and article 9 of the Universal Declaration of Human Rights, the source notes that the Working Group has held that an arrest without prior issuance of an arrest warrant is arbitrary within the meaning of category III.11 The source notes that in Tajikistan there is no requirement for a warrant to be issued prior to an arrest. It adds that Mr. Shamsiddinov was reportedly not shown an arrest warrant until several hours after he was summoned to the prosecutor’s office and arrested. Accordingly, the source submits that his arrest was arbitrary under international law.

E. 49 According to the source, Mr. Shamsiddinov remained in detention for two months while waiting to be tried in 2020 but the Government did not provide any justification for that detention. The source notes that Mr. Shamsiddinov did not pose a flight risk, as his family lived nearby. Moreover, there were no items of evidence that he was at risk of destroying. Lastly, there was no evidence that he posed a risk to public safety, as he was not accused of a violent crime and there was no reason to believe that he would commit such an offence 9 Human Rights Committee, general comment No. 34 (2011), para. 11; and A/HRC/48/55, paras. 46– 50, in relation to the deprivation of liberty of human rights defenders. 10 International Covenant on Civil and Political Rights, arts. 9 (1) and 15 (1); Universal Declaration of Human Rights, art. 11(2); and E/CN.4/2006/98, para. 46. 11 Opinions No. 87/2017, paras. 42–45; and No. 52/2018, para. 69. A/HRC/WGAD/2022/77 10 GE.23-04102 before his trial. Accordingly, that portion of his detention was reportedly in violation of article 9 (3) of the Covenant12 and principles 38 and 39 of the Body of Principles.

E. 50 According to the source, Mr. Shamsiddinov did not trust the lawyer appointed to him by the State in connection with the charges made against him in 2020, so he retained his former colleague from the Campaign for Human Rights as his lawyer. He was only permitted to meet with his chosen lawyer on one occasion, 26 days after his arrest and only in the presence of government investigators; he was not permitted to meet with him thereafter, nor was his lawyer permitted to assist him at trial or in the preparation of material for his appeals. Accordingly, the Government denied Mr. Shamsiddinov his due process right to the assistance of a lawyer of his own choosing, in violation of article 14 (3) (b) of the Covenant.13 51. According to the source, Mr. Shamsiddinov was compelled by means of torture to falsely confess to the charges for which he is detained. Specifically, he was allegedly beaten with a truncheon and placed in solitary confinement for up to three days. Videos of his confessions were reportedly submitted as evidence after having been edited, so as to omit the torture. The source notes that the videos should not have been admitted as evidence because they are the unreliable products of torture and are inadmissible because they had been edited so as to omit the torture, contrary to article 172 of the Criminal Procedure Code of Tajikistan. With reference to article 14 (3) (g) of the Covenant14 and principle 21 of the Body of Principles, the source thus submits that the admission of this evidence violated Mr. Shamsiddinov’s right to a fair trial. 52. The source refers to article 14 (1) of the Covenant, which guarantees a fair trial before an independent and impartial tribunal and further demands that all persons shall be equal before the courts and tribunals.15 According to the source, the extreme bias of the trial courts against Mr. Shamsiddinov, as detailed above, shows that his guilt was a foregone conclusion. In addition to effectively denying Mr. Shamsiddinov the right to counsel in connection with the charges made against him in 2020 and admitting inadmissible evidence in both trials (such as confessions made under torture), the courts in each trial denied him the right to present evidence in his defence other than by cross-examining witnesses and testifying on his own behalf. Furthermore, and more fundamentally, the prosecutor and investigators of Khatlon Province should have been prevented from engaging in his prosecution altogether, as provided for under the Criminal Procedure Code,16 given that some of the prosecutors and investigators were also the alleged victims of Mr. Shamsiddinov’s alleged crime of denunciation. Accordingly, the source submits that Mr. Shamsiddinov was denied the presumption of innocence and a fair trial. 53. In the light of article 14 (5) of the Covenant,17 the source asserts that the analysis of the issues raised by Mr. Shamsiddinov by the various appellate courts was limited only to concluding statements to the effect that his arguments were necessarily groundless because they contravened allegations made by the Government, which the appeals courts accepted at face value. The source submits that this does not constitute a meaningful appellate review. d. Category V 54. The source submits that, as set forth under category II above, Mr. Shamsiddinov was targeted, arrested and detained as retaliation for his expression of his opinions regarding corruption in Tajikistan. He was explicitly told that if he stopped speaking out about corruption, he would not be prosecuted for extremism. His refusal to be silenced is the reason he has been persecuted. Furthermore, the source asserts that the charges for denunciation and extremism target Mr. Shamsiddinov on the basis of his political opinion. As a result, the 12 Human Rights Committee, general comment No. 35 (2014), para. 38. 13 Basic Principles on the Role of Lawyers, para. 1. 14 Human Rights Committee, general comment No. 32 (2007), para. 6. 15 Ibid., para. 13; International Covenant on Civil and Political Rights, art. 14 (2); Universal Declaration of Human Rights, art. 11 (1); principle 36 of the Body of Principles; and rule 111 (2) of the United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules). 16 Criminal Procedure Code, arts. 61 and 65–66. 17 Human Rights Committee, general comment No. 32 (2007), para. 34. A/HRC/WGAD/2022/77 GE.23-04102 11 source submits that the Government’s detention of Mr. Shamsiddinov constitutes an arbitrary deprivation of liberty under category V. Response from the Government 55. On 14 July 2022, 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 September 2022, detailed information about the current situation of Mr. Shamsiddinov and to clarify the legal provisions justifying his continued detention, as well as the compatibility of his detention with the obligations of Tajikistan under international human rights law, in particular with regard to the treaties ratified by the State. Moreover, the Working Group called upon the Government of Tajikistan to ensure the physical and mental integrity of Mr. Shamsiddinov. 56. The Working Group regrets that the Government did not submit a reply or seek an extension in accordance with paragraph 16 of the methods of work of the Working Group. Discussion 57. In the absence of a response from the Government, the Working Group has decided to render the present opinion, in conformity with paragraph 15 of its methods of work. 58. In determining whether Mr. Shamsiddinov’s detention 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 law constituting arbitrary detention, the burden of proof should be understood to rest upon the Government if it wishes to refute the allegations.18 In the present case, the Government has chosen not to challenge the prima facie credible allegations made by the source. 59. The source has argued that the detention of Mr. Shamsiddinov is arbitrary and falls under categories I, II, III and V. The Working Group shall proceed to examine the submissions in turn. (a) Category I 60. According to the information provided by the source, Mr. Shamsiddinov was taken into custody on 9 September 2020 and did not have any contact with his family until 4 October 2020 and with a lawyer of his choice until 8 October 2020. According to the source, during this time Mr. Shamsiddinov did have access to a State-appointed lawyer. Notwithstanding the source’s allegation that Mr. Shamsiddinov did not trust this lawyer, the Working Group is unable to conclude that Mr. Shamsiddinov was held incommunicado for the first two weeks of his detention. The alleged breach of Mr. Shamsiddinov’s right to be assisted by a lawyer freely chosen by him is examined below, under category III. 61. The source further alleged that, for each of the charges against Mr. Shamsiddinov, the Government relied on confessions that had been obtained under torture. The Working Group considers that these and other allegations of violation of fair trial rights should be examined under category III. (b) Category II 62. The Working Group notes that Mr Shamsiddinov was charged with: (a) Knowingly making a false denunciation against a judge, prosecutor or interrogator;19 (b) Illegal provision of a plot of land;20 (c) Sale of forged documents;21 18 A/HRC/19/57, para. 68. 19 Criminal Code, art. 346 (3) (a). 20 Ibid., art. 338 (1) and (2). 21 Ibid., art. 40 (1). A/HRC/WGAD/2022/77 12 GE.23-04102 (d) Misappropriation and embezzlement causing significant harm to a citizen and by use of official powers;22 (e) Malicious evasion of child support;23 (f) Large-scale fraud;24 (g) Participation in the activities of an extremist organization.25 63. The source alleges that all the charges were aimed at punishing Mr. Shamsiddinov for his public comments on corruption and misappropriation by government officials. In particular, he was charged with denunciation and extremism in the form of publicizing information about the corruption of public authorities. As Mr. Shamsiddinov was a human rights activist who revealed corruption among State officials, he was ultimately detained for the legitimate exercise of his right to freedom of expression, which is protected by article 19 of the Covenant. 64. The Working Group notes that the Human Rights Committee has stated that such rights, as enshrined in article 19 of the Covenant, are indispensable conditions for the full development of the person and essential for any society, constituting the foundation stone for every free and democratic society.26 65. Furthermore, the Committee stated that the right to freedom of expression includes the right to seek, receive and impart information and ideas of all kinds regardless of frontiers; this includes the expression and receipt of communications of every form of idea and opinion, capable of transmission to others, including political opinions. Moreover, the permitted restrictions to that right may relate either to respect of the rights or reputations of others, or to the protection of national security or of public order or of public health or morals. The Committee also stipulated that restrictions are not allowed on grounds not specified in paragraph 3 of the general comment, even if such grounds would justify restrictions to other rights protected in the Covenant. Restrictions must be applied only for those purposes for which they were prescribed and must be directly related to the specific need on which they are predicated.27 In the present case, the Working Group fails to see any permitted restrictions that justify the interference with Mr. Shamsiddinov’s freedom of speech. 66. Given the factual basis and nature of the charges of knowingly false denunciation, it is clear to the Working Group that the basis for the arrest and subsequent detention of Mr. Shamsiddinov was his exercise of freedom of expression. Furthermore, the Government did not use the opportunity to refute the source’s allegations that all the charges against Mr. Shamsiddinov were contrived to punish him for posting critical posts on social media. 67. In the absence of any explanation from the Government, the Working Group concludes that Mr. Shamsiddinov was detained because of the exercise of his freedom of expression, in violation of article 19 of the Covenant and article 19 of the Universal Declaration of Human Rights. His deprivation of liberty thus falls under category II. (c) Category III 68. The Working Group has already established that the deprivation of liberty of Mr. Shamsiddinov, insofar as it relates to the charges under article 346 (3) (a) of the Criminal Code, is arbitrary under category II. It will now consider whether the alleged violations of the right to a fair trial and due process were of such gravity as to give his deprivation of liberty an arbitrary character, falling under category III. 69. The source has alleged that the fair trial rights of Mr. Shamsiddinov were violated because: 22 Ibid., art. 245 (2) (a), (c) and (d). 23 Ibid., art. 177 (1). 24 Ibid., art. 247 (4) (b). 25 Ibid., art. 307 (3). 26 Human Rights Committee, general comment No. 34 (2011), para. 2. 27 Ibid., paras. 11, 13 and 22. A/HRC/WGAD/2022/77 GE.23-04102 13 (a) The arrest took place without an arrest warrant. An arrest warrant was first presented several hours after Mr. Shamsiddinov was summoned to the prosecutor’s office and arrested; (b) Pretrial detention of Mr Shamsiddinov was not justified, as he did not present any risk of absconding or destroying evidence; (c) Mr. Shamsiddinov’s right to be assisted by a lawyer of his choosing was ignored, as he was only allowed to meet a lawyer of his choosing once, and in the presence of investigators; (d) The courts for each trial denied Mr. Shamsiddinov the right to present evidence in his defence, other than by cross-examining witnesses and testifying on his own behalf; (e) Mr. Shamsiddinov’s appeal was not examined properly; (f) Mr. Shamsiddinov’s confessions, which had been obtained under duress, became the basis for his convictions. 70. The Working Group observes that the Government has failed to respond to these allegations. The Working Group therefore accepts that Mr. Shamsiddinov was not accorded individualized determination of his pretrial detention; that Mr. Shamsiddinov was denied access to a lawyer of his own choosing, with the exception of one meeting with such a lawyer in the presence of investigators; that Mr. Shamsiddinov’s confessions obtained under duress formed the basis of his convictions; and that he could not call and examine witnesses on his own behalf. 71. The Working Group recalls that article 9 (3) of the Covenant provides that it shall not be the general rule that persons awaiting trial shall be detained in custody. The Human Rights Committee has confirmed that pretrial detention should be an exception, for as short a period as possible and 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. The courts must examine whether alternatives to detention, such as bail, would render custodial measures unnecessary. 28 According to the source, Mr. Shamsiddinov remained in detention for two months while waiting to be tried in 2020, without the Government providing any justification for his detention. This was despite Mr. Shamsiddinov not posing a flight risk, there being no items of evidence that he was at risk of destroying and no evidence that he posed a risk to public safety. In the absence of any information from the Government, the Working Group cannot conclude that such an individualized determination of Mr. Shamsiddinov’s circumstances took place, which is contrary to article 9 (3) of the Covenant. 72. The Working Group is particularly concerned about the alleged acts of ill-treatment, in violation of article 5 of the Universal Declaration of Human Rights and article 7 of the Covenant, that led to coerced confessions. The Working Group recalls that, in its general comment No. 32 (2007) on the right to equality before courts and tribunals and to a fair trial, the Human Rights Committee states that, under article 14 (3) (g) of the Covenant, it is unacceptable to torture or subject a person to other ill-treatment in order to extract a confession, and that the burden is on the State to prove that statements made by the accused have been given of their own free will.29 The Working Group has already confirmed that the admission of statements obtained as a result of torture or of other ill-treatment as evidence in criminal proceedings renders the entire proceedings unfair.30 This finding applies irrespective of the probative value of the statements and whether or not the statements were decisive in securing the defendant’s conviction. 73. Furthermore, Mr. Shamsiddinov was denied his right under article 14 (3) (g) of the Covenant for the defence witnesses to be examined by the court. The Working Group stresses that the testimony of a defence witness might be capable of proving the accused’s innocence 28 Human Rights Committee, general comment No. 35 (2014), para. 38. 29 Human Rights Committee, general comment No. 32 (2007), para. 41. 30 Opinion No. 22/2021, para. 54. A/HRC/WGAD/2022/77 14 GE.23-04102 or lead to his or her acquittal or otherwise influence the outcome of a trial, so the refusal to examine such a witness compromises the fairness of the criminal proceedings. 74. Furthermore, the Working Group regrets that Mr. Shamsiddinov was allowed to meet a lawyer of his own choosing only once and not in private. The Working Group is mindful that Mr. Shamsiddinov was charged with serious offences and ultimately sentenced to a lengthy prison term. The sentencing of Mr. Shamsiddinov thus was in violation of the guarantees enshrined in article 14 (3) (b), (d), (e) and (g) of the Covenant. The violations are sufficiently serious to render the detention arbitrary under category III. (d) Category V 75. The source alleges that Mr. Shamsiddinov’s arrest and detention fall under category V, given the discriminatory intent of the authorities to punish him for his work as a human rights lawyer revealing corruption. 76. The Working Group has already established that Mr. Shamsiddinov’s arrest and detention resulted from his exercise of the right to freedom of expression. When it is established that deprivation of liberty has resulted from the active exercise of civil and political rights, there is a strong presumption that the deprivation of liberty constitutes a violation of international law on the grounds of discrimination based on political or other views.31 77. Furthermore, the Working Group finds that the present case is similar to other cases that it has examined regarding human rights defenders in Tajikistan. The Working Group also refers to the concluding observations on Tajikistan by the Committee against Torture, which expressed deep concern at allegations of frequent reprisals from officials against human rights defenders.32 78. Noting that Mr. Shamsiddinov expressed his views on issues of such serious public concern as corruption among State officials, the Working Group believes that there is a distinct pattern in the attitude of the authorities towards human rights defenders that constitutes discrimination on the basis of political or other opinion, in a manner that ignores the equality of human rights, which is prohibited under articles 2 (1) and 26 of the Covenant. The Working Group considers that the facts in the present case disclose a violation under category V. 79. Lastly, the Working Group notes with concern the fact that the Government has not responded to the serious allegations in this case. The Working Group recalls that the Human Rights Council called for all States to cooperate with the Working Group, 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.33 Disposition 80. In the light of the foregoing, the Working Group renders the following opinion: The deprivation of liberty of Saidnuriddin Shamsiddinov, being in contravention of articles 2, 3, 5, 7–11 and 19 of the Universal Declaration of Human Rights and articles 2 (1), 7, 9 (3), 14 (3) (b), (d), (e) and (g), 19 and 26 of the International Covenant on Civil and Political Rights, is arbitrary and falls within categories II, III and V. 81. The Working Group requests the Government of Tajikistan to take the steps necessary to remedy the situation of Mr. Shamsiddinov 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. 82. The Working Group considers that, taking into account all the circumstances of the case, the appropriate remedy would be to release Mr. Shamsiddinov immediately and accord 31 Opinion No. 88/2017, para. 43. 32 CAT/C/TJK/CO/3, para. 21. 33 Human Rights Council resolution 51/8, paras. 6 and 9. A/HRC/WGAD/2022/77 GE.23-04102 15 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 unconditional release of Mr. Shamsiddinov. 83. The Working Group urges the Government to ensure a full and independent investigation of the circumstances surrounding the arbitrary deprivation of liberty of Mr. Shamsiddinov and to take appropriate measures against those responsible for the violation of his rights. 84. The Working Group requests the Government to disseminate the present opinion through all available means and as widely as possible. Follow-up procedure 85. 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. Shamsiddinov has been released and, if so, on what date; (b) Whether compensation or other reparations have been made to Mr. Shamsiddinov; (c) Whether an investigation has been conducted into the violation of Mr. Shamsiddinov’s rights and, if so, the outcome of the investigation; (d) Whether any legislative amendments or changes in practice have been made to harmonize the laws and practices of Tajikistan with its international obligations in line with the present opinion; (e) Whether any other action has been taken to implement the present opinion. 86. 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. 87. 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. 88. 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.34 [Adopted on 16 November 2022] 34 Human Rights Council resolution 51/8, paras. 6 and 9.