Message: Sapardurda Khadzhiev v. Turkmenistan. Message No. 2079/2011. The Views were adopted by the Committee on April 1, 2015.
In 2011, the author was assisted in preparing a complaint. Subsequently, the complaint was communicated to Turkmenistan.
Subject matter: habeas corpus; unfair trial; torture.
Substantive issue: arbitrary detention; the right to a fair trial; prohibition of torture, cruel and degrading treatment; protection from unlawful interference with privacy.
The Committee's legal position: The Committee recalls that the burden of proof cannot rest solely on the author of a communication, especially given that the author and the State party do not always have equal access to evidence and that often only the State party has relevant information (Communications No. 1422/2005, El Hassi v. Libyan Arab Jamahiriya, Views adopted October 24, 2007, paragraph 6.7; N 1297/2004, Majnoun v. Algeria, Views adopted on July 14, 2006, paragraph 8.3, and N 1804/2008, Il Khvildi v. Libya, Views adopted on November 1, 2012, paragraph 7.2.It follows from article 4, paragraph 2, of the Optional Protocol that the State party has an obligation to investigate in good faith all allegations of violations of the Covenant committed by itself or its representatives and to provide the Committee with the information available to it. ...In cases where the author's allegations are supported by credible evidence and where additional information is needed to clarify all the circumstances of the case, which is available only to the State party, the Committee may consider the author's allegations to be substantiated if the State party does not provide satisfactory explanations or evidence to the contrary (paragraph 8.3 of the Views) (See communication No. 1776/2008, Bashasha and Bashasha v. the Libyan Arab Jamahiriya, Views adopted on October 20, 2010, paragraph 7.2.).
The Committee further recalls that the State party is responsible for the safety of any person in custody and that, in the event of complaints of torture and ill-treatment, it is the State party that must provide evidence to refute the author's allegations. In addition, in the case of complaints of ill-treatment in violation of the provisions of article 7 of the Covenant, the State party is obliged to promptly and impartially investigate them. If, as a result of the investigation, violations of certain rights provided for in the Covenant are revealed, the State party should take measures to bring those responsible to justice (paragraph 8.4 Views) (See communication No. 1225/2003, Eshonov v. the Russian Federation, Views adopted on July 22, 2010, paragraph 9.8.).
The Committee refers to its previous decisions, which state that prisoners should be allowed, under appropriate supervision, to correspond regularly and without outside interference with their families and friends in good standing (See communication No. 74/1980, Estrella v. Uruguay, Views adopted on March 29, 1983, paragraph 9.2.) as required by the Standard Minimum Rules for the Treatment of Prisoners, according to which prisoners should be able to communicate "both by correspondence and during visits" (rule 37) (paragraph 8.8 of the Considerations).
The Standard Minimum Rules for the Treatment of Prisoners, adopted by the First United Nations Congress on the Prevention of Crime and the Treatment of Offenders, held in Geneva, Switzerland, in 1955, and endorsed by the Economic and Social Council in its resolutions 663 C (XXIV) of July 31, 1957 and 2076 (LXII) of May 13, 1977 G.
The Committee's assessment of the factual circumstances of the case: The Committee takes note of the author's allegations of torture and humiliation to which he was subjected after his arrest, as well as his claim that he and his lawyer were pressured to confess to a crime that he did not commit. It notes that the State party has not provided specific comments regarding the author's allegations of torture and humiliation, and has only reported, without providing any other information or evidence, that the facts of ill-treatment of the author have not been confirmed (paragraph 8.2 of the Views).
The Committee also notes that, despite its repeated requests, the State party has not provided documents relevant to what is referred to in the communication. The State party has not provided any information on whether the authorities investigated, either during the criminal investigation or in the context of this communication, the author's allegations of ill-treatment with a view to forcing him to confess. In addition, the State party did not provide the Committee with court records and copies of the author's complaints to the Prosecutor's Office and the Ashgabat City Court, although the Committee specifically requested it to do so. In these circumstances, and in the absence of information on the conduct of any "prompt and impartial" investigation into the author's allegations of torture, the Committee decides to pay due attention to the author's allegations, supported by sufficient evidence (paragraph 8.5 of the Views).
The Committee further takes note of the author's statement that his right under article 9, paragraph 1, was also violated, since for three days, from 16 to 18 June 2006, he was unlawfully detained in violation of the provisions of the Code of Criminal Procedure of Turkmenistan. Until June 18, 2006, he had no opportunity to challenge the legality of his detention or inform his relatives of his whereabouts. In the absence of any clarification from the State party, the Committee decides to give due consideration to the author's allegations, therefore it concludes that the author's rights under article 9, paragraph 1, have been violated (paragraph 8.6 of the Views).
The Committee takes note of the author's statements that during his imprisonment he was deprived of the right to meet with members of his family and relatives, as well as to correspond with them... Noting that the State party has not specifically refuted the author's allegations of violations of his rights during the first two years of his imprisonment, the Committee concludes that the facts presented by the author indicate a violation of his rights under article 17, paragraph 1, of the Covenant (paragraph 8.8 of the Views).
Conclusions of the Committee: The Committee concludes that the facts before it reveal violations by the State party of articles 7, paragraph 1 of article 9, paragraph 3 (g) of article 14 and paragraph 1 of article 17 of the International Covenant on Civil and Political Rights (paragraph 9 of the Views).
In accordance with article 2, paragraph 3, of the Covenant, the State party is obliged to ensure the effective restoration of Sapardurda Khadzhiev's rights and, in particular: (a) conduct a thorough and effective investigation into the circumstances of his detention and subsequent imprisonment; (b) provide him with detailed information on the results of this investigation; (c) if violations are confirmed, bring to justice (d) Provide appropriate compensation, including payment of appropriate compensation to the author for the violations committed against him. The State party is also obliged to take measures to prevent similar violations in the future (paragraph 10 of the Views).