View Adopted: 2020.11.06
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.
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.
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.
Individual Opinion of the Committee Member Furuya Shuichi, partially joined by Committee members David Moore and Hélène Tigroudja (dissenting)
Mr Furuya and Mr. Moore are unable to concur with the view adopted by the Committee that the author’s claim of violation under article 14(3)(d) and (e) concerning his trial in absentia is admissible. Additionally, Mr. Furuya and Ms. Tigroudja disagree with the conclusion that the resolution passed by the Parliament does not constitute a violation under article 14(2).
Trial in absentia
According to article 14(3)(d) of the Covenant, everyone has the right to be tried in his presence and to defend himself in person or through legal assistance. Although the Committee points out that certain State’s or circumstances allow for trial in absentia – this should be seen as the exception and a trial in person is more preferable. Since trial in absentia is the exception, it is up to the State to be able to prove that they attempted to contact the author and to ascertain his presence at the trial. Even with certain difficulties in contacting the accused, the State party is still obliged to demonstrate on how they made proactive efforts to inform the accused of the criminal charges, to notify him of the date and place of the criminal proceedings.
To this, the author has alleged that the State party made no efforts to contact him about the criminal proceedings, to which the State party did not rebut. Therefore, due to the State party not providing adequate proof on how they attempted to contact the accused, this should have constituted a violation of article 14(3)(d).
According to the Committee’s general comment No.32, it states that the presumption of innocence is broader than the conduct displayed by the concerned judge or the prosecutor in criminal proceedings. That the broader social context needs to be assessed, such as media and public statements that would affirm the guilt of an accused, which in the end would undermine their presumption of innocence.
Therefore, in our view – in order to find a violation of the presumption of innocence, it should not only matter what public statements are being made or the media coverage, but if someone is being treated as a guilty suspect or accused in such a manner – that this could constitute a violation of that right.
Thus, the Committee stated that the author did not substantiate how the document affected this right, but due to the fact that the document mentioned the author by name – could be a clear indication. Even though the parliament has the right to assess and take part in fact finding commissions, it is important that the parliament is still under the obligation, as an organ of the state, to treat individuals in accordance with the presumption of innocence. Thus, due to the fact that the document suggested the guilt of the author before a competent court had decided on it, constitutes a violation of his right under article 14(2).
Individual opinion of Committee Member Gentian Zyberi (dissenting)
Regrettably, Mr. Zyberi does not agree with the Committee’s finding that the author’s claims of violation under article 14(3)(d) concerning his trial in absentia as inadmissible. Also, I do not agree that the Parliamentary resolution passed, did not violate the author’s right to be presumed innocent under article 14(2).
Trial in absentia
Although the Committee states that the author was present in the country for 25 days after the beginning of his trial, the State party has not provided evidence on steps that were taken to inform the author of this trial. As trials in absentia are seen as the exception, the State party needed to provide information as to the measures taken to inform the author of the charges against him or when the proceedings were to be held. At the lack of this information provided by the State party, the Committee should have found that this constituted a violation of article 14(3)(d).
Parliamentary resolution of 16 June 2011
According to article 14(2), it states that everyone charged with a criminal offence shall have the right to be presumed innocent until proven guilty according to the law. This aligns with the duty for all public officials to refrain from prejudging the outcome of the trial or making statement that affirm the guilt of the accused. Due to the fact that the Parliamentary resolution mentions the author by name and as to what he has been charged with, this suffice would be a violation against the presumption of innocence under article 14(2). On the converse, the Committee states that the author failed to provide evidence on how a resolution could have affected this right, which goes against the notion presented in General comment No.32. This General comment states that it is a violation of the right if a public statement is released that prima facie prejudges the presumption of innocence of an accused. Therefore, the resolution clearly suggests the guilt of the author, before a competent court had the chance to assess the evidence and make their own conclusions. Thus, clearly demonstrating a violation of the right to be presumed innocent.