Communication on curtailing religious freedom, detention and arrest leading to deportation- held admissible

Facts

The author is a practising Jehovah’s Witness (JW) and had been residing in the city of Dushanbe in Tajikistan, on a valid residence permit since July 2017. The Ministry of Culture of Tajikistan unilaterally terminated the activities of the national legal entity of the JW (a religious minority) in Tajikistan and were therefore forced to meet in secret to practise their faith. On 4 October 2018, the author and 17 other members of the JW met in private to peacefully worship. Shortly after, a group of officers from the State Committee for National Security arrested 10 of the worshippers, including the author, and took them for interrogation the same day. During the investigation, the author was told that his religious activities were banned, and was threatened with deportation to the Russian Federation, where he would be charged with religious extremism. Later, the officers carried out a search in the author’s apartment and confiscated his passport while the author was detained. 

On 15 October 2018, the author was charged with committing an offence under article 499 (1) of the Code of Administrative Violations for violating the rules of residence for foreign citizens, which the author claims were not part of the allegations made against him during the investigation. Despite the testimony of witnesses in support of the author, he was convicted by the District Court and sentenced to pay a fine of 80 times the monthly calculation index (4,000 somoni), along with a deportation order to the Russian Federation. The author appealed the decision, which was rejected by the court. The author was then deported from Tajikistan to Kazakhstan on 30 October 2018. The author’s application for supervisory review to the Presidium of the Dushanbe City Court, a discretionary remedy under domestic law, was also rejected by the court.

 The author, a national of the Russian Federation born in 1988, claimed that the State of Tajikistan violated his rights under articles 9 (1), 13, read alone and in conjunction with articles 12, 18 (1) and (3), 26 and 27 of the Covenant, by subjecting him to detention, arrest, administrative conviction, monetary fine and deportation.

Admissibility

The author had sufficiently substantiated his claims concerning his arrest, detention, conviction and deportation based on his religious beliefs, under articles 9 (1), 13, read in conjunction with articles 12, 18 (1) and (3), 26 and 27 of the Covenant, for the purposes of admissibility.

Merits

The Committee recalled its general comment No. 35 (2014) on liberty and security of person, in which it refers to the prohibitions on arbitrary and unlawful deprivation of liberty. The Committee further recalled that, in order for an arrest to be in compliance with article 9 (1), it must not only be lawful but also reasonable and necessary taking into account all the circumstances. The Committee considered that the State party had failed to show why it was necessary to detain the author. In view of the circumstances, as described, the Committee concluded that the State party violated the author’s rights under article 9 (1) of the Covenant.

The Committee also recalled that article 18 (3) is to be interpreted strictly and that limitation may be applied only for those purposes for which they were prescribed and must be directly related to and proportionate to the specific need on which they are predicated. Consistent with its general comment No. 22 (1993), the Committee noted the author’s right to manifest his beliefs and that the conviction and sentence to a fine and deportation constituted limitations of that right. The Committee, therefore, concluded that such limitation does not meet the requirements of article 18 (3) and that the author’s rights under article 18 (1) of the Covenant have been violated. Lastly, in the light of its finding that there has been a violation of article 18 of the Covenant, the Committee decided not to examine separately the author’s claims under article 13, read alone and in conjunction with article 12, and articles 26 and 27 of the Covenant.

Recommendations

The State party is obligated, inter alia, not to prevent the author’s return to the State party should he so wish, to return to him the fine that he was ordered to pay under article 499 (1) of the Code of Administrative Violations; and to provide him with adequate compensation for the moral damages suffered as a result of his detention, arrest, conviction and deportation, as well as compensation for the legal expenses and fees incurred in the domestic courts and the proceedings before the Committee. The State party is also under an obligation to take all steps necessary to prevent similar violations from occurring in the future. 

Implementation

Deadline: 13th April 2022

 

By Sugandha Sawhney