Opinion; Subjects: TAJIKISTAN, ARBITRARY DETENTION; [WGAD: UNO-Arbeitsgruppe über willkürliche Inhaftierung, willkürliche Haft; Groupe de travail sur la détention arbitraire; Gruppo di lavoro sulla detenzione arbitraria]
Volltext (verifizierbarer Originaltext)
GE.24-09149 (E) 040624 050624
Human Rights Council
Working Group on Arbitrary Detention
Opinions adopted by the Working Group on Arbitrary
Detention at its ninety-ninth session, 18–27 March 2024
Opinion No. 18/2024 concerning Ulfatkhonim Mamadshoeva and
Sorbon Yunoev (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 51/8.
2.
In accordance with its methods of work,1 on 6 December 2023 the Working Group
transmitted to the Government of Tajikistan a communication concerning Ulfatkhonim
Mamadshoeva and Sorbon Yunoev. The Government replied to the communication on
29 January 2024. The State is a party to the International Covenant on Civil and Political
Rights.
3.
The Working Group regards deprivation of liberty as arbitrary in the following cases:
(a)
When it is clearly impossible to invoke any legal basis justifying the
deprivation of liberty (as when a person is kept in detention after the completion of his or her
sentence or despite an amnesty law applicable to him or her) (category I);
(b)
When the deprivation of liberty results from the exercise of the rights or
freedoms guaranteed by articles 7, 13, 14, 18, 19, 20 and 21 of the Universal Declaration of
Human Rights and, insofar as States parties are concerned, by articles 12, 18, 19, 21, 22, 25,
26 and 27 of the Covenant (category II);
(c)
When the total or partial non-observance of the international norms relating to
the right to a fair trial, established in the Universal Declaration of Human Rights and in the
relevant international instruments accepted by the States concerned, is of such gravity as to
give the deprivation of liberty an arbitrary character (category III);
(d)
When asylum-seekers, immigrants or refugees are subjected to prolonged
administrative custody without the possibility of administrative or judicial review or remedy
(category IV);
(e)
When the deprivation of liberty constitutes a violation of international law on
the grounds of discrimination based on birth, national, ethnic or social origin, language,
religion, economic condition, political or other opinion, gender, sexual orientation, disability,
* Miriam Estrada Castillo did not participate in the discussion of the case.
1 A/HRC/36/38.
United Nations
A/HRC/WGAD/2024/18
General Assembly
Distr.: General
5 June 2024
Original: English
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or any other status, that aims towards or can result in ignoring the equality of human beings
(category V).
1.
Submissions
(a)
Communication from the source
4.
Ulfatkhonim Mamadshoeva is a national of Tajikistan born on 26 April 1957. Her
usual place of residence is in the city of Dushanbe.
5.
Ms. Mamadshoeva is a civil society representative of the Pamiri Indigenous
population in Kŭhistoni Badakhshon Autonomous Province, a journalist and a human rights
defender. She is also the founder and director of the non-governmental organization “Nomus
Valnsof”, which is focused on children’s rights, education and women’s rights.
Ms. Mamadshoeva is the sister of a human rights defender and representative of the Pamiri
Indigenous population who has been detained since 28 May 2022, convicted and sentenced
to 18 years of imprisonment.
6.
Sorbon Yunoev is a national of Tajikistan, born on 25 March 1960. His usual place of
residence is in the town of Khorugh in Kŭhistoni Badakhshon Autonomous Province.
7.
Mr. Yunoev is an entrepreneur, a representative of the Pamiri ethnic minority living
in Kŭhistoni Badakhshon Autonomous Province, a civil activist and a local opinion leader.
In early 2000s, Mr. Yunoev was the only elected independent member of the local parliament
of Kŭhistoni Badakhshon Autonomous Province from Roshtqal’a District. As a member of
the local parliament, he implemented numerous public initiatives aimed at the socioeconomic
development of Kŭhistoni Badakhshon Autonomous Province, and openly alleged corruption
and the lack of democracy in Tajikistan. After the violent suppression of peaceful protests in
Kŭhistoni Badakhshon Autonomous Province in 2012 and 2018, he openly criticized actions
of the authorities. Since 2006, Mr. Yunoev has worked to improve financial awareness and
access to financial services for rural Pamiri people in Kŭhistoni Badakhshon Autonomous
Province, especially women.
(i)
Context
8.
According to the source, Ms. Mamadshoeva and Mr. Yunoev were arrested, detained
and convicted amidst a human rights crisis in Kŭhistoni Badakhshon Autonomous Province.
The source alleges that, in November 2021, following the killing of a local Indigenous Pamiri
resident by the police, mass protests erupted and were violently cracked down on, resulting
in at least 40 people being killed and hundreds detained.
9.
It is reported that independent journalists who covered the anti-government protests
and the violence against the demonstrators were subjected to threats and attacks, and several
prominent Pamiri civil society representatives were arbitrarily detained and criminalized on
fabricated charges.
(ii)
Arrest and detention of Ulfatkhonim Mamadshoeva
10.
The source affirms that on 17 May 2022, the Ministry of Internal Affairs issued a
statement 2 accusing Ms. Mamadshoeva of co-organizing an “illegal rally” and inciting
violence on 16 May 2022 in the town of Khorugh.
11.
On the same day, following the publication of the above-mentioned official statement,
Ms. Mamadshoeva publicly refuted the accusations and specified that during the protests she
was at her residence in Dushanbe and was not involved in the events in Khorugh.3 Later the
same day, a group of plain-clothed unidentified men attacked journalists from Radio Ozodi
and the Current Times after they had interviewed Ms. Mamadshoeva.
12.
The unidentified men pulled journalists out of their car and seized their professional
equipment, including cameras, microphones, lights and batteries, as well as professional and
2 See https://www.vkd.tj/index.php/ru/sobytiya/34065-vazorati-kor-oi-dokhil-khabar-medi-ad-2.
3 See https://fergana.agency/news/126182/.
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personal mobile phones. The attackers refused to identify themselves and stated that the
journalists would eventually retrieve their equipment. Reportedly, one of the journalists was
beaten and threatened with being shot dead. Following the attack, the Ministry of Internal
Affairs announced that it would launch an investigation into the incident on the basis of an
official complaint filed by the journalists. However, law enforcement officials later claimed
not to have found the perpetrators.
13.
On the morning of 18 May 2022, Ms. Mamadshoeva was arrested at her relative’s
apartment by approximately 10 individuals in plain clothes without insignia. Reportedly, at
approximately 8.20 a.m., the electricity in the apartment was cut off. One of the individuals
identified himself as a commander. He persuaded one of Ms. Mamadshoeva’s relatives to let
him into the apartment, stating that he only wanted to talk to Ms. Mamadshoeva. One of the
law enforcement officers involved in the arrest identified himself as an officer of the State
Committee for National Security.
14.
At around 8.45 a.m., when the man had entered the apartment, he told
Ms. Mamadshoeva that he was following instructions from the head of the State Committee
for National Security to invite her to an informal conversation with officers of that
Committee. The purpose of the conversation was to address a misunderstanding stemming
from a publication by the Ministry of Internal Affairs accusing Ms. Mamadshoeva of
organizing an illegal rally in Kŭhistoni Badakhshon Autonomous Province. She agreed to
participate in that discussion but requested that her lawyer be present during the conversation.
15.
When Ms. Mamadshoeva’s lawyer arrived, Ms. Mamadshoeva, her relative and the
lawyer were escorted to the headquarters of the State Committee for National Security. Upon
their arrival at the headquarters, officials of the State Committee for National Security took
Ms. Mamadshoeva inside the building and instructed her relative and her lawyer to wait
outside. After a brief period of time, representatives of the State Committee for National
Security informed Ms. Mamadshoeva’s relative and her lawyer that she would remain inside,
and asked them to return to her relative’s apartment with other representatives of the State
Committee for National Security for a search. Ms. Mamadshoeva was arrested and detained
and has remained in detention since then.
16.
It proved impossible to obtain any official information regarding the legal basis for
Ms. Mamadshoeva’s arrest, both at the time of her arrest and in the immediate aftermath.
17.
Representatives of the State Committee for National Security conducted a search in
Ms. Mamadshoeva’s relatives’ properties in the presence of witnesses. During the searches,
the authorities seized Ms. Mamadshoeva’s computer and mobile phone.
18.
In June 2022, Ms. Mamadshoeva’s relatives filed a complaint with the Office of the
Prosecutor General, as they were not able to visit Ms. Mamadshoeva in the pretrial detention
centre. Subsequently, the family was allowed to visit Ms. Mamadshoeva three times, under
the supervision of the authorities of the pretrial detention centre.
19.
Reportedly, on 19 May 2022, Ms. Mamadshoeva’s relatives found out from unofficial
sources that she had been charged with “publicly calling for violent change of the
constitutional order” (art. 307 (2) of the Criminal Code). Moreover, on 19 May 2022, the
Ministry of Internal Affairs reported that Ms. Mamadshoeva had been accused of allegedly
supervising and financing the provision of weapons and ammunition to members of a terrorist
group (art. 179 (1) and (2) of the Criminal Code).
20.
The source adds that Ms. Mamadshoeva was held in pretrial detention from 18 May
2022 until early December 2022, when she was convicted and sentenced to 20 years of
imprisonment by the Supreme Court. From 25 May 2022 until the date of sentencing in early
December 2022, Ms. Mamadshoeva was held in the pretrial detention centre of the State
Committee for National Security.
21.
Ms. Mamadshoeva’s family did not receive official information as to which authority
had decided to impose pretrial custody as the measure of restraint, or about which judges
were responsible for her sentencing. According to article 104.2 of the Code of Criminal
Procedure, pretrial detention can be only imposed on the basis of a decision by a domestic
court. Under article 111.2 of the Code of Criminal Procedure, such a decision is issued by a
judge or a court in response to an appeal by an investigative authority. The pretrial
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investigation in the criminal case was conducted by investigators of the Office of the
Prosecutor General and the State Committee for National Security. The source concludes that
this would suggest that the Supreme Court made its decision on pretrial detention on the basis
of a request either from a prosecutor or from an investigator from the State Committee for
National Security.
22.
During Ms. Mamadshoeva’s time in the pretrial detention centre of the State
Committee for National Security, her mental health deteriorated significantly, as she was
predominantly kept in solitary confinement from 25 May 2022 until early December 2022,
enduring considerable pressure from the authorities. Subsequently, the medical staff of the
pretrial detention centre provided her with medical assistance.
23.
On 15 July 2022, the Office of the Prosecutor General, in a videotaped press
conference, announced that the investigation into the case was ongoing under article 187.1
of the Criminal Code regarding establishing a criminal organization for the commission of
grave or especially grave crimes, managing such an organization or its structural units, and
creating an association of organizers, leaders or other representatives of organized groups in
order to develop plans and create conditions for committing grave or especially grave crimes.
24.
On 15 August 2022, the Prosecutor reportedly requested a 25-year sentence in a
general regime penal colony. Reportedly, on 18 August 2022, the Chairman of the Criminal
Division of the Supreme Court was appointed to preside over Ms. Mamadshoeva’s trial, and
on 9 December 2022, the Supreme Court, as a court of first instance, sentenced her to a prison
term of 20 years.
25.
In early December 2022, the Supreme Court issued a verdict against
Ms. Mamadshoeva in a closed hearing, and as a result, the specific details of the verdict are
unknown. The law enforcement authorities classified Ms. Mamadshoeva’s case as a State
secret. Hence, her lawyers were obliged to sign a non-disclosure agreement, her relatives did
not receive any information regarding her case from the authorities, and all the court hearings,
including the sentencing, took place in camera.
26.
The source adds that, under domestic law, disclosure of information in such cases
leads to criminal liability. Also, allegedly, Ms. Mamadshoeva’s lawyer was unable to provide
adequate legal defence for Ms. Mamadshoeva because of the intimidating environment
created by the authorities. It is reported that the authorities have allegedly harassed lawyers
and human rights defenders working on the cases of those detained following the events in
Kŭhistoni Badakhshon Autonomous Province.
27.
On 26 January 2023, the press service of the Office of the Prosecutor General
announced that Ms. Mamadshoeva had been found guilty under 10 articles of the Criminal
Code and sentenced to 20 years in prison. These charges included establishment of and
involvement in a criminal association; murder and attempted murder; terrorism; financing for
the illegal possession of ammunition and firearms and their illegal transfer to others; treason
against the State; violent capture of State power or a public call for violent change of the
constitutional structure of Tajikistan; disruption of political and social order; a public call for
extremist activities (extremism); and the establishment of extremist organizations. The
statement, did not, however, provide any further details about the specific charges or the
evidence supporting them.
28.
The conviction was reportedly appealed by Ms. Mamadshoeva’s lawyer. However, in
March 2023, the Supreme Court upheld the sentence.
29.
After the sentencing, Ms. Mamadshoeva was held in detention facilities of the
Ministry of Justice from the beginning of December 2022 until 6 May 2023. Since then, she
has reportedly been serving her sentence in Women’s Penal Colony No. 3/8 of the Ministry
of Justice in the town of Nurek.
30.
Ms. Mamadshoeva’s family was not officially notified of the date and the fact of her
transfer from Pretrial Detention Centre No. 1 of the Ministry of Justice in Dushanbe to
Women’s Penal Colony No. 3/8. The family learned of the transfer on 9 May 2023, when
security guards of Pretrial Detention Centre No. 1 did not accept a food parcel for
Ms. Mamadshoeva.
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(iii)
Arrest and detention of Sorbon Yunoev
31.
In November 2021, following the alleged killing of a local Indigenous Pamiri resident
by the police, mass protests erupted and were violently supressed by the authorities, resulting
in at least 40 people being killed and hundreds detained. The source adds that Mr. Yunoev
was a neighbour and a friend of one of the persons who lost their lives. As a prominent
opinion leader in the local community, Mr. Yunoev actively criticized the police violence
and called on the authorities to conduct an effective investigation.
32.
The source reports that Mr. Yunoev was first arrested on 13 June 2022 in the street in
the “Ninth Kilometre” neighbourhood, in Dushanbe, and was detained at the premises of the
State Committee for National Security until 16 June 2022. On 16 June 2022, he was released
with a verbal summons to appear, within 24 hours, at the premises of the State Committee
for National Security in Khorugh. The reasons and legal grounds for the summons were not
provided and no arrest warrant was shown on this occasion.
33.
On 17 June 2022, Mr. Yunoev was arrested in the building of the State Committee for
National Security in Khorugh. Allegedly, the arrest was carried out by officials of the State
Committee for National Security. It is unknown whether Mr. Yunoev was provided with an
arrest warrant during his second arrest, however his family was not provided with the reasons
for the arrest.
34.
Around 20 June 2022, Mr. Yunoev’s family was informed that he had been arrested
for allegedly being part of a criminal association and had been charged with “participation in
a criminal association” under article 187 (2) of the Criminal Code. Mr. Yunoev has been
detained since 17 June 2022 until present. From 17 June to 23 August 2022, he was held in
the temporary detention centre of the State Committee for National Security in Khorugh.
35.
During his trial, Mr. Yunoev was accused of raising his voice against the acting
authorities; of expressing his support for the participants in mass protests in Kŭhistoni
Badakhshon Autonomous Province in November 2021 and May 2022; of expressing his
support for the head of Commission 44,4 who had been arrested and detained on 28 May 2022
and had subsequently been sentenced to 29 years of imprisonment; of organizing a peaceful
sports event held in Khorugh on 30 May 2020; and of publicly criticizing unreasonable use
of the State budget for the construction of a flagpole with the national flag of Tajikistan in
one of the districts of Kŭhistoni Badakhshon Autonomous Province. For these actions, he
was found guilty of “participation in a criminal association” under article 187 (2) of the
Criminal Code.
36.
According to the source, Mr. Yunoev was convicted of participation in a criminal
association, which does not match the activities he was charged with during his trial. The
source adds that there is not much information about Mr. Yunoev’s conviction, since his
relatives tried to secure a lawyer of his choice, but several lawyers refused to work on the
case due to fear of prosecution by the authorities. It is alleged that the authorities have
harassed lawyers and human rights defenders working on the cases of those detained
following the events in Kŭhistoni Badakhshon Autonomous Province.
37.
Mr. Yunoev has refused the assistance of a State-appointed lawyer because he had
strong reasons to doubt his impartiality and independence from law enforcement authorities.
38.
On 23 August 2022, Mr. Yunoev was sentenced to 10 years of imprisonment. He was
then transferred to Penal Colony No. 3/5 of the Ministry of Justice in the town of Khujand
where he has been serving his sentence up to this time.
(iv)
Legal analysis
39.
The source argues that Ms. Mamadshoeva and Mr. Yunoev have been deprived of
liberty arbitrarily and that their detention falls under categories I, II, III and V of the Working
Group.
4 Commission 44 is an independent group established in 2021 to investigate the death of a resident of
the region killed by police in November 2021. The death sparked an initial round of protests in
Khorugh, the regional capital.
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40.
In relation to category I, the source argues that Ms. Mamadshoeva and Mr. Yunoev
were arrested, detained and convicted on the basis of a criminal case initiated against them
in the context of a human rights crisis in Kŭhistoni Badakhshon Autonomous Province, which
included numerous human rights violations against Pamiri civil society representatives.5 The
source states that the above indicates that their criminal cases are related to
Ms. Mamadshoeva’s human rights work and Mr. Yunoev’s activities as a representative of
civil society and a local opinion leader.
41.
The source alleges that the detention of Ms. Mamadshoeva is arbitrary insofar as her
case and judicial proceedings were unjustly classified as a “State secret”, which prevents
conclusions on whether the factual actions imputed to them by the authorities could have
amounted to the corpus delicti of imputed crimes as defined in the domestic legislation.
42.
Additionally, the relatives were given an opportunity to contact Ms. Mamadshoeva
only three times during the pretrial investigation, under the control of the detention centre
administration, and they were not allowed to communicate with her openly. There was no
access to case materials and the trial was held in camera in the State Committee for National
Security pretrial detention centre in Dushanbe. Her relatives were not allowed to attend the
trial or read the verdict.
43.
The source concludes, on Ms. Mamadshoeva’s case, that the unjustified classification
of the case as a State secret, coupled with the absence of comprehensive official information
during the pretrial investigation and before, during and following the trial, does not allow
conclusions to be drawn on whether the factual actions imputed to her by the authorities could
have amounted to corpus delicti for the imputed crimes as defined in the domestic legislation.
44.
Concerning Mr. Yunoev, the source argues that, as the activities he was charged with
during the trial do not match the nature of the charge, conclusions cannot be drawn on
whether the factual actions imputed to him by the authorities could have amounted to corpus
delicti for the imputed crimes as defined in the domestic legislation.
45.
In relation to category II, the source submits that Ms. Mamadshoeva and Mr. Yunoev
were arrested and detained as a result of exercising their rights guaranteed under articles 7,
19 and 20 of the Universal Declaration of Human Rights and articles 19, 21 and 26 of the
Covenant.
46.
The source recalls that Ms. Mamadshoeva and Mr. Yunoev are prominent human
rights defenders and that their arrest and detention occurred amidst a human rights crisis in
Kŭhistoni Badakhshon Autonomous Province. It is believed that their arrest and detention
relate to their legitimate activities advocating for the rights of the Pamiri Indigenous
population in the region.
47.
Concerning Ms. Mamadshoeva, the source explains that she is a representative of the
Pamiri ethnic minority. She is well known in Tajikistan as a human rights defender and
journalist who has advocated for the defence of the civil, political, cultural and
socioeconomic rights of the Pamiri Indigenous population. Moreover, for the past three years,
she has been raising awareness about the situation of Indigenous minority communities in
Kŭhistoni Badakhshon Autonomous Province due to violations by the authorities of their
socioeconomic, political and civil rights.
48.
Against this background, the source alleges that Ms. Mamadshoeva was arrested and
detained in May 2022 amidst a crackdown on civil society, human rights defenders and
independent journalists in Kŭhistoni Badakhshon Autonomous Province, in which at least
eight more Pamiri human rights defenders were subjected to alleged arbitrary detention,
enforced disappearance and criminalization.6
49.
It is reported that Ms. Mamadshoeva was convicted by the Supreme Court in early
December 2022, along with three other prominent Pamiri human rights defenders, although
5 See https://srdefenders.org/end-of-mission-statement-official-country-visit-to-tajikistan/.
6 See https://srdefenders.org/tajikistan-alleged-arbitrary-detention-enforced-disappearance-and-
criminalisation-of-nine-human-rights-defenders-joint-communication/.
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it is unknown whether all four proceedings were grouped together as part of one criminal
case.
50.
The source also argues that, specifically concerning article 20 of the Universal
Declaration of Human Rights and article 22 of the Covenant, the classification of the criminal
case materials does not allow comprehensive conclusions to be drawn about the reasoning
and details of the charges against Ms. Mamadshoeva. However, the press service of the
Office of the Prosecutor General has reported that one of the charges is establishment of and
involvement in a criminal association.
51.
In this context, the source explains that Ms. Mamadshoeva is the founder and director
of the non-governmental organization Nomus Valnsof, which is focused on children’s rights,
and their upbringing and education, as well as women’s rights. The organization has also
worked to protect the rights of members of the Pamiri ethnic minority. Furthermore, the
source recalls that during the 109th session of the Committee on the Elimination of Racial
Discrimination, a representative of Tajikistan stated that “individuals posing as human rights
defenders were often members of organized criminal gangs who established so-called
non-governmental organizations. One such person was Ms. Ulfatkhonim Mamadshoeva, who
had set up the organization Nomus Valnsof in 2016 and had committed a number of
offences.”7
52.
For the above-mentioned reasons, the source concludes that Ms. Mamadshoeva, as a
well-known representative of the Pamiri ethnic minority, was most likely arrested, detained
and convicted for her human rights and journalistic work aimed at combating discrimination
against the Pamiri ethnic minority by the authorities. The source submits that the reason for
her arrest, detention and conviction is her exercise of the right to freedom of opinion and
expression.
53.
Regarding Mr. Yunoev, the source asserts that independent journalists who covered
the ongoing anti-government protests and the violence against the demonstrators were
subjected to threats and attacks, and several prominent Pamiri human rights defenders were
arbitrarily detained and criminalized on fabricated charges. Reportedly, dozens of Pamiri
civil and political activists who have criticized police violence have been attacked and
arrested. In the spring and autumn of 2022, the authorities arrested, detained and convicted
at least nine Pamiri human rights defenders.
54.
The source recalls in this context that Mr. Yunoev is a well-known Pamiri civic
activist and that since the 2000s he has been involved in community initiatives aimed at
ensuring the sustainable development of the region and of the Pamiri Indigenous population
living there. He has also actively criticized on social media the police violence, arrests and
harassment of Pamiri anti-government protesters, and has called for an effective investigation
into the murder of an Indigenous man which triggered the November 2021 protests.
55.
The source thus concludes that based on the charges announced during the court
hearing, it is known that Mr. Yunoev was charged for organizing a peaceful sports event in
Kŭhistoni Badakhshon Autonomous Province; for criticizing the authorities for
mismanagement of budget funds; for criticizing the authorities for failing to effectively
investigate police violence against the Indigenous population of Kŭhistoni Badakhshon
Autonomous Province in 2021 and 2022; and for supporting anti-government protests. These
acts were classed by the authorities as participation in a criminal organization under
article 182 (2) of the Criminal Code. For these reasons, the source concludes that
Mr. Yunoev’s detention is arbitrary and falls under category II of the Working Group.
56.
In relation to category III, the source submits that the rights of Ms. Mamadshoeva and
of Mr. Yunoev to a public hearing, to adequate defence, to choose their counsel, not to be
compelled to testify against themselves, and to a fair hearing by an independent and impartial
tribunal, were violated.
57.
The source recalls that, because Ms. Mamadshoeva’s case was classified as a State
secret, in accordance with article 253 (2) of the Code of Criminal Procedure, the criminal
case was heard by the Supreme Court. Moreover, the trial reportedly occurred behind closed
7 See CERD/C/SR.2972.
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doors in the detention centre. The source also adds that the relatives and the public were
unable to attend the hearings and the reading of the verdict. Although Ms. Mamadshoeva’s
lawyers were present during the trial, they were barred from disclosing information about the
proceedings due to the non-disclosure order.
58.
The source also asserts that Ms. Mamadshoeva’s lawyers were not given the
opportunity to provide a meaningful defence during the pretrial investigation and the trial
proceedings due to fear of harassment, considering the alleged documented cases of
harassment of human rights defenders and lawyers working on the cases of those detained in
relation to the events in Kŭhistoni Badakhshon Autonomous Province in November 2021.
59.
The source notes that, during the pretrial investigation and the trial,
Ms. Mamadshoeva’s lawyers had limited access to her. In particular, the administration of
the pretrial detention centre reportedly often refused to allow her lawyers to meet with their
client. It is reported that the legal counsel did not appeal these actions by the administrations
of pretrial detention centres due to fear of harassment.
60.
Concerning Mr. Yunoev, the source affirms that several lawyers approached by the
family with a request to represent him have refused to work on the case due to fear of
prosecution by the authorities. The source recalls the alleged documented cases of harassment
of human rights defenders and lawyers working on the cases of those detained in relation to
the events in Kŭhistoni Badakhshon Autonomous Province in November 2021.
61.
The source reports that there is no information on whether Mr. Yunoev had adequate
time and facilities for the preparation of his defence.
62.
Moreover, the source submits that neither Ms. Mamadshoeva nor Mr. Yunoev
benefited from a fair hearing by an independent and impartial tribunal. The hearings for both
cases occurred in the context of repression of civil society, human rights defenders and
independent journalists in Kŭhistoni Badakhshon Autonomous Province, accompanied by
numerous alleged human rights violations.
63.
The source submits that several other prominent human rights defenders from
Kŭhistoni Badakhshon Autonomous Province were detained and subjected to politically and
ethnically motivated harassment during the same period of time. In this regard, the source
concludes that the trial against them was not fair and impartial.
64.
Additionally, concerning Ms. Mamadshoeva, it is reported that the trial was conducted
in camera in order – among other purposes – to conceal violations of the right to a fair trial.
65.
Specifically considering the case of Ms. Mamadshoeva, the source argues that she was
allegedly coerced into testifying against herself, and that that testimony could have been used
in court proceedings. Reportedly, on 24 May 2022, Tajik State television broadcast a video
in which she confessed that she was among the organizers of the protests in the town of
Khorugh in May 2022. The circumstances of the production of this video are unknown, but
there are grounds to believe that the confession was coerced or given under torture, since
Ms. Mamadshoeva had denied any involvement in organizing the protests in several
interviews with independent media the day before her arrest on 17 May 2022.
66.
In relation to category V, the source argues that the arrest, detention and conviction
of Ms. Mamadshoeva and Mr. Yunoev are related to their legitimate activities, namely
Ms. Mamadshoeva being a human rights defender and journalist and Mr. Yunoev being a
civil activist and local opinion leader. The source concludes that it is most likely that they
were arrested, detained and convicted for their activities and ongoing human rights work.
(b)
Response from the Government
67.
On 6 December 2023, 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 5 February 2024, detailed information about the
current situation of Ms. Mamadshoeva and Mr. Yunoev and to clarify the legal provisions
justifying their continued detention, as well as its compatibility with the obligations of
Tajikistan under international human rights law, and in particular with regard to the treaties
ratified by the State.
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68.
In its reply, dated 29 January 2024, the Government stated that the rights of
Ms. Mamadshoeva and Mr. Yunoev, as set forth in articles 7, 9 (1) and (3), 10 (1) and 14 (1)
and (3) (b), (d), (e) and (g) of the Covenant had been fully respected during the pretrial
investigation and judicial proceedings in the criminal case against them. It referred in this
respect to numerous provisions of the Constitution and the Code of Criminal Procedure,
including those related to the right to equality (art. 17 of the Constitution), the right to be
heard by an independent and impartial tribunal (art. 19 of the Constitution) and the
prohibition of torture (art. 18 of the Constitution).
69.
The Government further stated that Ms. Mamadshoeva had been convicted by a
verdict of the Judicial Collegium on Criminal Cases of the Supreme Court of Tajikistan dated
9 December 2022, under articles 187 (1), 104 (2), 32 (3), 104 (2), 179 (3), 195 (3), 305 (1),
306 (1) and 307 of the Criminal Code of Tajikistan, to a final punishment of 20 years of
imprisonment with confiscation of property and deprivation of the right to organize and
participate in mass events for a period of five years, with the sentence to be served in a general
regime penal colony. According to the Government, Ms. Mamadshoeva was found guilty of,
inter alia, establishing and leading a criminal association for the commission of serious or
especially serious offences such as murder and terrorism; calling for, assisting in or
performing actions aimed at seizing power and overthrowing the constitutional order by
force; using the mass media or the Internet on the instructions of hostile organizations or
representatives of foreign States; and making public calls for extremist activities using the
media or the Internet.
70.
According to the Government, Ms. Mamadshoeva was proven guilty of the
above-mentioned crimes, not only by virtue of her testimony during preliminary inquiries,
and the judicial hearing in the presence of a lawyer, but also by the testimony of victims and
witnesses, the findings of forensic examinations, records of inspection of the crime scene,
the coroner’s inquest, a review of the social media site YouTube, and physical and other
evidence included in the case file and examined in the court hearing. Ms. Mamadshoeva and
her lawyer did not concede the judgment of conviction and filed cassation appeals; on
16 March 2023, the Supreme Court’s Judicial Board for Criminal Cases upheld the judgment
and dismissed the appeals.
71.
The Government submits that the evidence in the case established that
Ms. Mamadshoeva was found guilty and convicted not for human rights activities, as alleged
in the Working Group’s communication, but for specific acts recognized in the Criminal
Code as crimes. Thus, by prior conspiracy with other criminal groups operating in Kŭhistoni
Badakhshon Autonomous Province and terrorist organizations recognized in Tajikistan and
located outside the country, she created a criminal association. Ms. Mamadshoeva
systematically contacted leaders of the above-mentioned terrorist organizations by phone, in
the presence of the leaders of criminal groups in Kŭhistoni Badakhshon Autonomous
Province, and agreed to commit crimes in the region and to finance criminal groups. Under
the agreed plan, terrorist organizations guaranteed and financed criminal groups located in
the region, which used the money to purchase firearms, ammunition and narcotic substances
for sale, while the proceeds were spent on the needs of members of the association and on
armed operations. Ms. Mamadshoeva, for her part, oversaw the feasibility of distributing the
incoming money for criminal purposes.
72.
During the detention of members of the association, a large number of firearms,
Kalashnikov assault rifles and machine guns, pistols, grenade launchers, hand grenades,
fuses, cartridges of various calibres and other ammunition, explosives, intercoms and radios,
night vision optics, bayonet knives, 187,876 grams of narcotic substances and satellite
communication and other equipment were found and seized from them.
73.
These circumstances are confirmed by the testimony of Ms. Mamadshoeva herself
during the preliminary and judicial inquiries, as well as the testimony of other members of
the criminal association, victims and witnesses, physical evidence seized during the
preliminary investigation and other evidence in the criminal case. Therefore, the criminal
case against Ms. Mamadshoeva is not related to her human rights activities, as the source
suggests.
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74.
The Government submits that as Ms. Mamadshoeva’s criminal case file contains
information constituting a State secret and its disclosure affects security interests, the case
was considered in a closed court. It is evident from the criminal case file that
Ms. Mamadshoeva had been informed of the end of the preliminary investigation by the
record of 22 July 2022 and that she and her lawyers had familiarized themselves with the
case file, which they confirmed with their signatures.
75.
According to the criminal case file, after the verdict had been handed down and
announced in court, with the participation of the defendants and their lawyers,
Ms. Mamadshoeva was familiarized with the verdict and a copy of it was handed to her,
against her signature. These documents refute the claim that Ms. Mamadshoeva’s verdict was
passed behind closed doors and that, as a result, the specific details of the verdict are
unknown.
76.
Furthermore, the criminal case file indicates that Ms. Mamadshoeva and her lawyer,
having familiarized themselves with the case file, actively participated in the court hearing,
and, having received additional time, prepared for the judicial pleadings, where they
presented specific oral arguments and written submissions in defence of their interests.
Thereafter, the court, having listened to the pleadings and closing statement of the defence,
reached a decision, giving a legal assessment of the arguments presented. These
circumstances refute the claims that Ms. Mamadshoeva and her lawyers were not given the
opportunity to provide a meaningful defence.
77.
In addition, according to the court records, during the trial the defendants and their
lawyers, including Ms. Mamadshoeva and her lawyer, were given the opportunity to fully
express their views on the charges without time limits, to listen to the victims and the
witnesses, to ask them questions and clarify the circumstances of interest to them, to
participate in the examination of evidence, to invite additional witnesses to the trial and
request additional evidence, and to state their opinion on the documents in the case file, which
had been disclosed and examined in full. In other words, the conditions established by law
for the defence of one’s rights and interests and the exercise of procedural rights were created.
This refutes the claim that the trial was not fair or impartial.
78.
Regarding Mr. Yunoev, the Government notes that he was sentenced by Murghab
District Court in Kŭhistoni Badakhshon Autonomous Province on 23 August 2022 under
articles 36 (5) and 187 (2) of the Criminal Code to 10 years’ imprisonment for aiding and
abetting the leaders or other members of organized groups. The criminal case file shows that
Mr. Yunoev was found guilty not for his human rights activities as a representative of civil
society in Kŭhistoni Badakhshon Autonomous Province and a local opinion leader, but for
specific acts recognized under the Criminal Code as crimes.
79.
The evidence collected in the case establishes that, in April 2021, Mr. Yunoev made
an agreement over the telephone with the head of an organized group in Roshtqal’a District
and, in May 2021, received from him 650,000 Russian roubles for the purchase of three
VAZ-2107 (Lada) vehicles. He is also registered under the name and surname “Sorbon
Yunoev” on Facebook and systematically communicated with the deputy head of the
National Alliance of Tajikistan (Paimoni Millii Tojikiston), an extremist terrorist
organization. These circumstances are confirmed by the testimony of Mr. Yunoev during the
preliminary and judicial investigation, as well as the testimony of witnesses and other
evidence in the criminal case examined during the trial.
80.
Mr. Yunoev was detained on 18 June 2022 and a record of arrest was presented to him
against his signature. In accordance with article 46 of the Code of Criminal Procedure, he
was informed of his rights as a detainee, and that, under article 12 (5) of the Code of Criminal
Procedure, he was not obliged to testify against himself or his close relatives; he noted in his
own handwriting that his procedural rights had been explained to him and that he had no
complaints or statements about his detention. These circumstances refute the claim that
Mr. Yunoev was not presented with an arrest warrant.
81.
The criminal case file shows that Mr. Yunoev submitted a written statement to the
court that he had a higher education, and that he himself would defend his procedural rights
and carry out his obligations, and that he thus refused the services of a lawyer, and his refusal
was voluntary and not related to his financial situation. Mr. Yunoev’s statement is not
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contrary to the law and does not violate his procedural rights, which refutes the claims that
he refused the assistance of a State-appointed lawyer because he had strong reasons to doubt
the lawyer’s impartiality and independence from the law enforcement agencies.
82.
The Government notes that Mr. Yunoev conceded the court’s verdict and did not file
a cassation appeal against it. Thus, the preliminary and judicial investigations in the criminal
case against Ms. Mamadshoeva and Mr. Yunoev were conducted in compliance with the
requirements of the Code of Criminal Procedure and their procedural rights were upheld.
(c)
Further comments from the source
83.
On 29 January 2024, the reply of the Government was sent to the source for further
comments, which the source provided on 20 February 2024.
84.
Concerning the case of Ms. Mamadshoeva, the source reiterates that there are strong
grounds to believe that she may have been forced to testify against herself through physical
or psychological violence in custody without any opportunity to receive legal assistance. No
impartial health assessment was made of whether there was torture or inhuman or degrading
treatment. The first family visit occurred several weeks after the arrest on 18 May 2022 and
the release of the confession video on 24 May 2022, when the coercion to admit guilt may
have taken place. All Ms. Mamadshoeva’s meetings with her family while in pretrial
detention were supervised by investigators of the State Committee for National Security.
85.
Moreover, the wide dissemination of video alleging Ms. Mamadshoeva’s guilt on
State television channels and in State institutions before the verdict and eight days after the
events violates the presumption of innocence and the right to privacy, guaranteed by
article 14 (2) of the Covenant and article 15 of the Code of Criminal Procedure. In addition,
on 17 and 19 May 2022, the Ministry of Internal Affairs published two statements alleging
that Ms. Mamadshoeva had provided weapons, ammunition and funding to criminal groups.
86.
In addition, the dissemination of the film accusing Ms. Mamadshoeva and revealing
details of her alleged criminal acts contradicts the Government’s argument that it was
justified in classifying this case file as a State secret.
87.
The pretrial investigation in the case lasted only two months, while Ms. Mamadshoeva
was charged under 10 articles of the Criminal Code, including charges of several serious
crimes, such as organizing a criminal association, terrorism, espionage and so on. Such a
short duration for a pretrial investigation may indicate that it was not thoroughly complete
and was fabricated.
88.
The source reiterates that Ms. Mamadshoeva was not presented with an arrest warrant,
as she was initially invited for a conversation at the State Committee for National Security.
The Government’s statements about the respect of Ms. Mamadshoeva’s procedural rights
after her arrest cannot be confirmed, as the files of the criminal case are classified. It is
furthermore impossible for Ms. Mamadshoeva’s family to have a confidential conversation
with her.
89.
As the pretrial investigation in the case was concluded on 22 July 2022 and the judge
was assigned to the case on 18 August 2022, Ms. Mamadshoeva was given less than one
month to familiarize herself with the materials of a large multi-volume criminal case
containing charges under 10 articles of the Criminal Code.
90.
As the court hearings have taken place in camera, it is impossible to verify the
Government’s statements regarding the fair nature of the trial. No witnesses from the defence
side were invited to the court hearing. The Supreme Court rejected Ms. Mamadshoeva’s
cassation appeal and upheld her sentence in January 2024.
91.
Turning to the case of Mr. Yunoev, the source notes that it is unclear how the
acquisition of three vehicles or communicating with the deputy of “Paimoni Millii
Tojikiston”, which is designated as extremist terrorist organization in Tajikistan, falls under
article 36 (5) and article 187 (2) of the Criminal Code (complicity in a criminal association).
92.
The Law on Combating Terrorism defines basic counterterrorism principles and
establishes the country’s legal and organizational framework for counterterrorism efforts.
Both this law and the Criminal Code offer an overbroad and ambiguous definition of
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“terrorist actions”, “terrorist crimes” and “terrorist organizations”. Article 187 of the
Criminal Code does not provide a clear definition of criminal activity, thereby providing the
Government with the ability to apply its own broad interpretation of the intent behind
Mr. Yunoev’s phone calls.
93.
The arrest warrant was not shown during the first arrest on 13 June 2022. There is no
information about the second arrest on 17 June 2022. Mr. Yunoev refused a State-appointed
lawyer because several lawyers of his family’s choice refused to take the case due to fear of
harassment. He was aware that in such circumstances a State-appointed lawyer would be
particularly unable to provide him with adequate legal assistance.
2.
Discussion
94.
The Working Group thanks the source and the Government for their submissions.
95.
In determining whether the deprivation of liberty of Ms. Mamadshoeva and
Mr. Yunoev is 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 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.8
96.
The source has argued that the detention of Ms. Mamadshoeva and Mr. Yunoev is
arbitrary and falls under categories I, II, III and V. The Working Group will examine these
in turn.
(a)
Category I
97.
The source submitted that Ms. Mamadshoeva was invited to an informal conversation
with officers of the State Committee for National Security, that she was escorted to the State
Committee for National Security headquarters and that her relatives were unable to obtain
any information on her arrest. Mr. Yunoev was not informed of the reasons of his arrest by
means of an arrest warrant. In its reply, the Government stresses that their arrests were in
conformity with human rights norms, and that Mr. Yunoev furthermore signed the record of
arrest.
98.
The Working Group recalls that article 9 (2) of the Covenant provides that anyone
who is arrested is to be informed, at the time of arrest, of the reasons for the arrest and is to
be promptly informed of any charges. The Working Group has previously stated that in order
for a deprivation of liberty to have a legal basis, it is not sufficient that there is a law that may
authorize the arrest. The authorities must invoke that legal basis and apply it to the
circumstances of the case.9 This is typically done through an arrest warrant or arrest order (or
equivalent document).10 The right to be presented with an arrest warrant is inherent to the
right to liberty and security of person and to the prohibition of arbitrary detention, under
articles 3 and 9 of the Universal Declaration of Human Rights as well as principles 2, 4 and
10 of the Body of Principles for the Protection of All Persons under Any Form of Detention
or Imprisonment.11
99.
The Working Group would like to note the distinction between a warrant – a document
signed by a competent judicial authority that authorizes the arrest and detention of an
individual, and a record of arrest – which is a document that merely lists the offences for
8 A/HRC/19/57, para. 68.
9 Opinions No. 9/2019, para. 29; No. 46/2019, para. 51; and No. 59/2019, para. 46.
10 Human Rights Committee, general comment No. 35 (2014), para. 23; and opinions No. 30/2017,
paras. 58 and 59; No. 88/2017, para. 27; No. 3/2018, para. 43; and No. 30/2018, para. 39.
11 The Working Group has maintained from its early years that the practice of arresting persons without
a warrant renders their detention arbitrary. See decisions No. 1/1993, paras. 6 and 7; No. 3/1993,
paras. 6 and 7; No. 4/1993, para. 6; No. 5/1993, paras. 6, 8 and 9; No. 27/1993, para. 6; No. 30/1993,
paras. 14 and 17 (a); No. 36/1993, para. 8; No. 43/1993, para. 6; and No. 44/1993, paras. 6 and 7. For
more recent jurisprudence, see opinions No. 66/2019, para. 61; No. 6/2020, para. 40; No. 11/2020,
para. 38; No. 13/2020, para. 47; No. 14/2020, para. 50; and No. 89/2020, para. 54.
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13
which the individual is arrested.12 The latter, which apparently was signed by Mr. Yunoev,
does not alone constitute a valid form of justification for an arrest and subsequent detention
as prescribed by article 9 of the Covenant, despite the Government’s claim.
100.
The Working Group thus concludes that the detention of Mr. Yunoev and
Ms. Mamadshoeva failed to satisfy the requirements of article 9 (2) of the Covenant and is
therefore arbitrary under category I.
(b)
Category II
101.
The Working Group firstly notes that Ms. Mamadshoeva is a renowned journalist and
human rights defender known far beyond Tajikistan, and Mr. Yunoev is a civic activist. The
source alleges that the persecution of Ms. Mamadshoeva and Mr. Yunoev was motivated by
their opinions and participation in peaceful assemblies. In particular, Ms. Mamadshoeva was
arrested amid a crackdown on activists in Kŭhistoni Badakhshon Autonomous Province,
following her efforts to highlight violations against Pamiris by the authorities. Mr. Yunoev
was similarly targeted after criticizing government mismanagement and police violence in
Kŭhistoni Badakhshon Autonomous Province. Their arrests and charges, which lack
transparent justifications, appear to be attempts by the Government to suppress dissent and
limit freedom of expression.
102.
In its reply, the Government outlines that their convictions were based on specific
criminal activities, not their human rights work. It asserts that Ms. Mamadshoeva was
involved in establishing and leading a criminal organization with links to terrorist groups,
committing serious offences including murder, terrorism and other crimes. Her guilt was
affirmed by evidence including her own testimony, witness statements, and physical
evidence, leading to a conviction upheld by the Supreme Court. Similarly, Mr. Yunoev was
convicted for specific criminal acts, proven by evidence and his own admissions, unrelated
to his human rights advocacy.
103.
The Working Group considers that these conflicting accounts surrounding the
prosecutions of Ms. Mamadshoeva and Mr. Yunoev should be assessed against the backdrop
of the current situation of human rights and media freedom in Tajikistan. On the one hand,
the Government of Tajikistan asserts that these individuals were lawfully convicted on the
basis of solid evidence of criminal activities, including terrorism and conspiracy. On the other
hand, international observers, human rights organizations and media reports portray a starkly
different picture, suggesting that these charges are trumped up and retaliatory in nature and
are aimed at silencing dissent and quashing human rights advocacy, especially in the context
of Kŭhistoni Badakhshon Autonomous Province.
104.
The broader context, as reported by the European Parliament, 13 United Nations
experts 14 and, in particular, the Special Rapporteur on the situation of human rights
defenders, 15 indicates a pattern of repression in Tajikistan, where the crackdown on
independent media, peaceful protests and human rights defenders has intensified. This pattern
is particularly pronounced in the treatment of journalists and activists covering or engaging
with social issues and human rights abuses in Kŭhistoni Badakhshon Autonomous Province.
The usage of counter-extremism and counter-terrorism legislation to suppress dissent raises
serious concerns about the misuse of such laws to legitimize the silencing of political
opposition and peaceful activism. The international community’s calls for the release of
detained human rights defenders, alongside criticisms of the declining media freedom in
Tajikistan, underscore the perceived political motivations behind these arrests and
convictions.
105.
In the light of this, the Working Group considers that it was up to the Government to
provide clear evidence that the accusations against Ms. Mamadshoeva and Mr. Yunoev had
12 Kurbanov v. Tajikistan (CCPR/C/79/D/1096/2002), para. 7.2.
13 See https://www.europarl.europa.eu/doceo/document/RC-9-2024-0064_EN.html.
14 See https://www.ohchr.org/en/press-releases/2023/07/tajikistan-un-experts-deplore-criminal-
proceedings-against-human-rights and
https://spcommreports.ohchr.org/TMResultsBase/DownLoadPublicCommunicationFile?gId=27560.
15 See https://srdefenders.org/end-of-mission-statement-official-country-visit-to-tajikistan/.
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a factual basis, and the Government has failed to do so. A vague and general reference to
serious crimes is not sufficient, considering the documented pattern of repression where
charges of extremism and terrorism, as widely reported, are potentially used as tools against
those advocating for human rights and transparency. For instance, the Government has failed
to explain how Ms. Mamadshoeva was in a position to reveal any State secrets to foreign
intelligence, being a civil person without any access to State secrets.
106.
In view of the general context mentioned above and a failure by the Government to
provide a detailed account of charges and evidence against Ms. Mamadshoeva and
Mr. Yunoev, the Working Group is convinced that in fact the basis for their arrest and
subsequent conviction was their exercise of freedom of expression and freedom of assembly,
guaranteed by articles 19 and 20 of the Universal Declaration of Human Rights and articles
19 and 21 of the Covenant.
107.
The Working Group concludes that the arrest and detention of Ms. Mamadshoeva and
Mr. Yunoev is arbitrary and falls under category II. The Working Group refers the present
case to the Special Rapporteur on the promotion and protection of the right to freedom of
opinion and expression and the Special Rapporteur on the rights to freedom of peaceful
assembly and of association, for appropriate action.
(c)
Category III
108.
Given its finding that the deprivation of liberty of Ms. Mamadshoeva and Mr. Yunoev
is arbitrary under category II, the Working Group wishes to emphasize that no trials should
have taken place. Nevertheless, as the trials took place and Ms. Mamadshoeva and
Mr. Yunoev were convicted and given long prison sentences, the Working Group will
proceed with examination of the source’s submissions concerning the denial of fair trial rights
to them.
109.
The source submits that Ms. Mamadshoeva and Mr. Yunoev were not tried by an
independent and impartial tribunal and that Ms. Mamadshoeva did not have a public hearing.
110.
As regards independence of the judiciary, the Working Group recalls that this is a sine
qua non for the right to a fair hearing enshrined in article 10 of the Universal Declaration of
Human Rights and article 14 of the Covenant. The notion of the separation of powers between
the political organs of government and the judiciary, as well as the notion of safeguarding
the independence of the judiciary, have assumed growing importance. The Working Group
refers to numerous reports by international organizations underlining structural problems
relating to independence of the judiciary and concluding that the judiciary operates under the
control of the executive branch, and that de facto separation of powers is not maintained in
Tajikistan.16
111.
In view of the findings of various reputed international institutions, including in the
proceedings in question, and given the submissions of the source and the lack of sufficient
information by the Government to refute those allegations, the Working Group cannot but
find that Ms. Mamadshoeva and Mr. Yunoev were not tried by an independent and impartial
tribunal, contrary to article 10 of the Universal Declaration of Human Rights and
article 14 (1) of the Covenant.
112.
Furthermore, the Working Group recalls that article 14 (1) of the Covenant provides
that, in the determination of any criminal charge, everyone is entitled to a public hearing.
Article 10 of the Universal Declaration of Human Rights similarly guarantees the right to a
public hearing. As the Human Rights Committee has explained, the publicity of hearings
ensures the transparency of proceedings and thus provides an important safeguard for the
interest of the individual and of society at large.17 Although the right to a public hearing is
not absolute, it may only be restricted “for reasons of morals, public order (ordre public) or
national security in a democratic society, or when the interest of the private lives of the parties
16 See, for example, A/HRC/WG.6/25/TJK/2, para. 31; and International Commission of Jurists, Neither
Check Nor Balance: The Judiciary in Tajikistan, ICJ mission report (December 2020), available at
https://www.icj.org/wp-content/uploads/2020/12/Neither-Check-nor-
Balance_Tajikisan_MR_ENG.pdf.
17 See the Committee’s general comment No. 32 (2007), para. 28.
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so requires, or to the extent strictly necessary in the opinion of the court in special
circumstances where publicity would be prejudicial to the interests of justice”, and, in the
absence of such exceptional circumstances, “a hearing must be open to the general public,
including members of the media”, without entrance being limited to a select group of
people.18
113.
It is submitted by the source and confirmed by the Government that
Ms. Mamadshoeva’s trial was closed to the public and the media, in violation of the
above-mentioned provisions. The Government’s reference to State secrets, as mentioned
earlier, remains unexplained. The Working Group thus finds that the hearing of
Ms. Mamadshoeva’s case behind closed doors violated her rights under article 10 of the
Universal Declaration of Human Rights and article 14 (1) of the Covenant.
114.
The source also considers that Ms. Mamadshoeva and Mr. Yunoev did not have
adequate time and facilities for the preparation of their defence and to communicate with
counsel of their own choosing, as lawyers in the country are afraid to defend human rights
activists effectively, being intimidated and persecuted for this. In particular, according to the
source, the lawyers refused to appeal against certain procedural decisions and to participate
in certain hearings. The Government has contested this, stating that Ms. Mamadshoeva was
legally represented, and that her lawyers fully participated in the trial. Furthermore, the
Government has stated that Mr. Yunoev preferred to defend himself without legal assistance.
115.
The Working Group notes that the submissions of the source are corroborated by the
above-mentioned reports, in which serious concern is raised over intimidation of lawyers in
Tajikistan. In its earlier jurisprudence,19 the Working Group has already stressed that it is the
legal and positive duty of the State to protect everyone on its territory or under its jurisdiction
against any human rights violation and to provide remedies whenever a violation is
perpetrated. It especially recalled that, according to the United Nations Basic Principles and
Guidelines on Remedies and Procedures on the Right of Anyone Deprived of Their Liberty
to Bring Proceedings Before a Court, legal counsel should be able to carry out its functions
effectively and independently, free from fear of reprisal, interference, intimidation, hindrance
or harassment. In the view of the Working Group, article 14 (3) (b) of the Covenant was thus
breached in the cases of Ms. Mamadshoeva and Mr. Yunoev, and the Government failed to
provide sufficient information that would lead to an opposite conclusion.
116.
Finally, concerning the allegations by the source that Ms. Mamadshoeva’s
self-incriminating statements could have been made under duress, not sufficiently disproved
by the Government, the Working Group notes that the use of confessions extracted through
ill-treatment that is tantamount if not equivalent to torture is a breach of article 14 (3) (g) of
the Covenant and may also constitute a violation of the State’s obligations under article 15
of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment. Furthermore, the Body of Principles for the Protection of All Persons under Any
Form of Detention or Imprisonment specifically prohibits taking undue advantage of the
situation of detention to compel confession or incriminating statements.
117.
In view of the above, the Working Group considers that the violations of the right of
Ms. Mamadshoeva and Mr. Yunoev to a fair trial are of such gravity as to give their
deprivation of liberty an arbitrary character, falling under category III of the Working Group.
(d)
Category V
118.
The source submits that the detention of Ms. Mamadshoeva and Mr. Yunoev is
arbitrary under category V as they have been deprived of their liberty for reasons of
discriminatory intent against them, as human rights activists. The Government has stated that
their actions amounted to serious crimes, and that this was the only reason for their
prosecution and conviction.
119.
In this regard, the Working Group recalls that when a detention results from the active
exercise of civil and political rights, there is a strong presumption that the detention also
18 Ibid., para. 29.
19 Opinion No. 17/2019.
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constitutes a violation of international law on the grounds of discrimination based on political
or other views. The Working Group further observes that it has already examined in its
previous jurisprudence concerning Tajikistan the same pattern in the attitude of the
authorities towards those who belong to opposition parties, or human rights activists. This
pattern is also confirmed by numerous international bodies in their reports on Tajikistan.
120.
Noting all of the above, the Working Group finds that Ms. Mamadshoeva and
Mr. Yunoev were detained on discriminatory grounds, on the basis of political or other
opinion, in a manner that ignores the equality of human rights – a prohibited ground of
discrimination under article 26 of the Covenant. The Working Group considers that the facts
in the present case disclose a violation under category V. The Working Group refers the
present case to the Special Rapporteur on the situation of human rights defenders, for
appropriate action.
(e)
Concluding remarks
121.
The situation of human rights defenders in Tajikistan remains deeply concerning, as
evidenced by the comprehensive report presented by the Special Rapporteur on the situation
of human rights defenders to the Human Rights Council following her visit to the country in
2022.20 The findings reveal challenges faced by human rights defenders, lawyers, journalists
and civil society actors who often endure criminal persecution under the guise of legal
processes. The report highlights the case of Ms. Mamadshoeva as an example of the misuse
of criminal law against those advocating for fundamental human rights in Kŭhistoni
Badakhshon Autonomous Province. The Special Rapporteur’s recommendations to end the
abuse of the criminal law and drop unwarranted charges against human rights defenders are
echoed by the Working Group. It is imperative to ensure that human rights defenders can
operate without fear of reprisal or interference. Continuing to penalize these individuals for
receiving foreign funding or for their peaceful activities stands in direct opposition to the
principles of freedom and democracy.
122.
The Working Group further expresses its concern that Ms. Mamadshoeva was
reportedly held in isolation for an unspecified period, suffered extreme mental stress and had
to undergo mental health treatment. The Working Group reminds the Government of its
obligation under article 10 (1) of the Covenant to ensure that all persons deprived of their
liberty are treated with humanity and with respect for the inherent dignity of the human
person.21
3.
Disposition
123.
In the light of the foregoing, the Working Group renders the following opinion:
The deprivation of liberty of Ulfatkhonim Mamadshoeva and Sorbon Yunoev, being
in contravention of articles 3, 9, 10, 19 and 20 of the Universal Declaration of Human
Rights and articles 9, 14, 19, 21 and 26 of the International Covenant on Civil and
Political Rights, is arbitrary and falls within categories I, II, III and V.
124.
The Working Group requests the Government of Tajikistan to take the steps necessary
to remedy the situations of Ms. Mamadshoeva and Mr. Yunoev without delay and bring them
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.
125.
The Working Group considers that, taking into account all the circumstances of the
cases, the appropriate remedy would be to release Ms. Mamadshoeva and Mr. Yunoev
immediately and accord them an enforceable right to compensation and other reparations, in
accordance with international law.
126.
The Working Group urges the Government to ensure a full and independent
investigation of the circumstances surrounding the arbitrary deprivation of liberty of
20 See https://srdefenders.org/country-visit-report-tajikistan/.
21 See, for example, opinions No. 46/2020, para. 64; and No. 66/2020, para. 66.
A/HRC/WGAD/2024/18
GE.24-09149
17
Ms. Mamadshoeva and Mr. Yunoev and to take appropriate measures against those
responsible for the violation of their rights.
127.
In accordance with paragraph 33 (a) of its methods of work, the Working Group refers
the present case to the Special Rapporteur on the promotion and protection of the right to
freedom of opinion and expression, the Special Rapporteur on the rights to freedom of
peaceful assembly and of association, and the Special Rapporteur on the situation of human
rights defenders, for appropriate action.
128.
The Working Group requests the Government to disseminate the present opinion
through all available means and as widely as possible.
4.
Follow-up procedure
129.
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 Ms. Mamadshoeva and Mr. Yunoev have been released and, if so, on
what date;
(b)
Whether compensation or other reparations have been made to
Ms. Mamadshoeva and Mr. Yunoev;
(c)
Whether an investigation has been conducted into the violation of
Ms. Mamadshoeva’s and Mr. Yunoev’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.
130.
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.
131.
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 of any failure to take action.
132.
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.22
[Adopted on 22 March 2024]
22 Human Rights Council resolution 51/8, paras. 6 and 9.