Claim of the violation of the presumption of innocence and the right to be tried in person, the Committee finds no violation.

Facts

The author who is an ethnic Uzebek, who is living and working in the city of Osh in Kyrgyzstan. In May and June 2010, due to the riots that led to the ouster of the then President, Kurmanbek Bakiev, inter-ethnic tensions seem to escalate and numerous attacks against ethnic Uzbeks took place in the cities and regions of Osh and Jalalabad. Subsequently, the author was accused of being amongst those responsible for the inter-ethnic conflict. He submits that the main grounds for his criminal charges against him were the broadcasting of the rally that took place in May 2010, although he was not present during this rally. He received various warnings and threats against him and his family and left the country in June 2010.

In June 2011, the Parliament passed a resolution that they would be investigating the events of 2010. In violation of the principle of presumption of innocence – the Parliament listed the author as one of the organisers of the nationalist and separatist events. In October 2011, the Jalalabad City Court sentenced the author in absentia to 14 years’ imprisonment and found him guilty of separatist acts and organisation of mass disorder and killings – amongst other things. The author alleges that he was not informed of the trial date and was unable to secure legal representation to the hearing, and that he heard about his trial through the media. His appeal against the decision was rejected by the Supreme Court, in 2014.

The author claims that this violated his rights under article 14(1) and (2) of the Covenant. The author also claims that the parliamentary resolution of 2011 had a negative impact on the courts and would prejudge the outcome of the trial – which affected his right to a fair and impartial tribunal. Furthermore, the author claims a violation of his right under article 14(3)(d) of the Covenant, as the court of first instance failed to notify him of the date of the trial and subsequently sentenced him in absentia. In addition to this, this would be a violation of article 14(3)(e) – as the author could not examine the witnesses that testified against him or to have the witnesses questioned in his defence. The author believes that the judgment against him was handed down on a discriminatory bases and would be a violation of articles 2(1) and 27 of the Covenant. Finally, he claims that his rights under article 17 were violated, because due to the sentence handed down on him, his dignity has been damaged, and he has been labelled as a criminal – to which his family life has been affected.

Admissibility

The Committee notes that the author’s claim of his rights being violated under article 17 has not been brought forward in domestic courts – thus, he has not exhausted domestic procedures. It will therefore not be considered admissible within the communication.

In light of the other claims under article 14(3)(d) and (e) – the Committee notes that the author was not informed of his trial, was not able to acquire legal representation and was not able to question witnesses during his trial. According to the facts presented, the Committee notes that the trial of the accused started before he had left the country, and that he was only a witness at the time. Furthermore, when assessing the court documents, he was legally represented and there was no information produced that stated that he was not in contact with this representation during the time. Therefore, the Committee finds that the author has failed to substantiate these claims before the Committee and declares them inadmissible.

Finally, according to the violation of article 27 of the Covenant, the Committee notes that the author failed to fully substantiate these claims by not providing sufficient information. Thus, these claims will be declared inadmissible too.

Therefore, the Committee will assess the claims under article 14(1) and (2) of the Covenant, as these have been correctly substantiated.

 

Merits

The Committee notes the authors arguments that the parliamentary resolution passes in 2011 would affect his right to a fair and impartial trial and affected his right to be presumed innocent. The Committee in assessment of the resolution found that the resolution stated that the Supreme Court of Kyrgyzstan should ensure full transparency in the criminal proceedings and allow those charged full access to the trial. Therefore, the Committee notes that in this respect, the author has failed to substantiate or prove as to how the resolution would have affected his criminal proceedings in a negative way.

Therefore, the Committee finds not violation under articles 14(1) and (2) of the Covenant.