Facts

The author of the present communication, Kyrgyzstani national Azimjan Askarov, was sentenced to life imprisonment by the Bazar-Gorgon district court on 15 September 2010 for having instigated ethnic hatred and inciting disorder, which led to the murder of a police officer on 13 June 2010 by the crowd who had gathered in the context of ethnic violence in Southern Kyrgyzstan. He was also found guilty of inciting the violence which resulted in the attempted murder of other officers and for possessing 10 rounds of ammunition.

The author of the present communication claims that his arrest, detention, trial and ultimately his sentence are marked by flagrant violations of his rights under the Covenant, namely article 2; article 7, read separately and in conjunction with article 2 (3); article 9 (1); article 10 (1); article 14 (1), (2), (3) (b) and (e) and (5); article 19; and article 26.

The author claims that the treatment inflicted upon him by police officers in detention, which he attributes to ethnic discrimination and punishment for reporting police abuse, as well as the desire to obtain a false confession, amounts to torture in violation of article 7 of the Covenant. The failure of the State party to investigate these allegations, nor to protect and provide redress to the author, amounts to a further violation of article 7, read separately and in conjunction with article 2 (3) of the Covenant.

The author also complains that his detention was not in accordance with domestic law, was illegitimate and was a result of discrimination against both his ethnicity and his role as a human rights defender. It was therefore unlawful and arbitrary, in violation of article 9 and prohibited under articles 2 and 26 of the Covenant.

Moreover, the inhuman conditions in which the author was detained, in particular at the Bazar-Gorgon police station, were inhuman, in violation of article 10 of the Covenant.

 Furthermore, the author was denied adequate time and facilities to prepare for his defence, or to call upon or cross-examine witnesses effectively. He was also not present at the first review of his conviction by the Supreme Court. The lack of independence and impartiality in the author’s trial and subsequent appeal process and the atmosphere of intimidation both at trial and on appeal violated his right to a fair hearing, and thus amounts to a violation of article 14 of the Covenant.

Finally, the author considers that the authorities detained and tortured him and denied him a fair trial in large part because of his work as a human rights defender in Kyrgyzstan, in violation of articles 9 and 19 of the Covenant

Admissibility

The Committee notes that the author has successfully exhausted all available domestic remedies, including the supervisory appeal filed with the Supreme Court, and thus the Committee concludes that it is not precluded from considering the communication. However, the Committee notes that the author has not sufficiently substantiated his claim that the State party violated his rights under articles 2, 14 (1) (2) and (5), 19 and 26, and therefore declares this part of the communication inadmissible. Nonetheless, the Committee considers that the author has sufficiently substantiated his claims under article 7, read separately and in conjunction with article 2 (3), and articles 9 (1), 10 (1) and 14 (3) (b) and (e) of the Covenant for the purposes of admissibility, and therefore proceeds with its consideration of the merits.

Merits

The Committee considers that, in light of the existing evidence that the author was subjected to acts of torture and the State party’s inability to provide an explanation for this, due weight should be given to the author’s allegations. Moreover, the Committee notes that the material on file does not allow it to conclude that the investigation into the allegations of torture was in accordance with international law, and thus concludes that the author’s rights have been violated under article 7 of the Covenant, read separately and in conjunction with article 2 (3).

Regarding arbitrary detention, the Committee notes the absence of any pertinent explanation from the State party regarding the author’s whereabouts, the conditions of his detention and the record of arrest. The Committee thus considers that the author’s rights under article 9 (1) of the Covenant were violated.

The Committee further takes note of the author’s contention that the conditions of his detention were inhuman, in violation of article 10 of the Covenant. In view of the fact that the State party itself acknowledged the overcrowding, and taking into account the evidence provided by both the author and the multiple submissions by independent experts, the Committee concludes that the State party violated the author’s rights under article 10 (1) of the Covenant.

The Committee further notes that it remains undisputed that the author’s counsel was not able to question witnesses on the first day of trial, and that the author was not able to call or cross-examine witnesses at the Supreme Court hearing. On this basis, the Committee concludes that the author’s rights were violated under article 14 (3) (e) of the Covenant.

The Committee, lastly, examines the author’s claims that his right to have adequate time and facilities for the preparation of his defence were violated. Taking into account the unrefuted evidence that the author’s lawyer was not present at the hearings on the first day of trial because he had not been notified in time, as well as the author’s claims that contact with his lawyer was otherwise obstructed, the Committee concludes that the facts as submitted reveal a violation of the author’s rights under article 14 (3) (b) of the Covenant.

The Committee is therefore of the view that the facts before it disclose a violation of the author’s rights under article 7, read separately and in conjunction with article 2 (3), and articles 9 (1), 10 (1) and 14 (3) (b) and (e) of the Covenant.

Recommendations

Pursuant to article 2 (3) (a) of the Covenant, the State party is under an obligation to provide the author with an effective remedy. The State party is obligated, inter alia, to take appropriate steps to:

• immediately release the author;
• quash the author’s conviction and, if necessary, conduct a new trial, in accordance with the principles of fair hearings, presumption of innocence and other procedural safeguards;
• and provide the author with adequate compensation.

The State party is also under an obligation to take steps to prevent similar violations from occurring in the future.

The Committee also wishes to receive from the State party, within 180 days, information regarding the measures taken to give effect to the Committee’s Views. The deadline for this information is therefore 31st September 2016. In addition, the Committee requests the State party to publish the Views.

Separate Opinions

Array