Communication: Tatiana Shikhmuradova (on behalf of her husband Boris Shikhmuradov) v. Turkmenistan. Message No. 2069/2011. The Views were adopted by the Committee on October 17, 2014.
In 2011, the author was assisted in preparing a complaint. Subsequently, the complaint was communicated to Turkmenistan.
Subject: enforced disappearance of the author's spouse; torture; habeas corpus; unfair trial.
Substantive issues: the right to life, prohibition of torture and cruel and inhuman treatment, the right to freedom and personal security; the right to a fair trial; the principle of non-retroactivity; protection from unlawful interference in family life.
The legal positions of the Committee. The Committee reaffirms that the burden of proof cannot rest solely on the author of a communication, especially since the author and the State party do not always have equal access to evidence and that often only the State party has access to relevant information (El Hassi v. Libyan Arab Jamahiriya, para. 6.7; communication No. 1297/2004, Mejouin v. Algeria, Views of July 14, 2006, paragraph 8.3; communication No. 1804/2008, Il Khuildi v. Libyan Arab Jamahiriya, Views of November 1, 2012, paragraph 7.2.) From paragraph 2 of art. 4 of the Optional Protocol makes it clear that the State party has an obligation to investigate in good faith all allegations of violations of the Covenant that have been committed against it and its representatives and to provide the Committee with the information it has. In cases where the allegations are supported by reliable evidence provided by the author, and where any additional clarification depends on information available exclusively to the State party, the Committee may consider the author's allegations to be substantiated in the absence of satisfactory evidence or explanations provided by the State party to the contrary (paragraph 6.2 of the Views).
The Committee recalls its jurisprudence according to which, in cases of enforced disappearance, deprivation of liberty with subsequent refusal to acknowledge the fact or concealment of information about the fate or whereabouts of the disappeared person leaves that person outside the protection of the law and puts his life at serious and permanent risk, for which the State is responsible (paragraph 6.3 of the Views) (Abushaala v. Libya, clause 6.2.).
The Committee is aware of the intense suffering experienced by a person held incommunicado. The Committee refers to its general comment No. 20 (1992) on the prohibition of torture or cruel, inhuman or degrading treatment or punishment, in which it recommends that States parties take measures against incommunicado detention (paragraph 6.4 of the Views).
The Committee recalls that, in accordance with the Covenant, everyone is entitled to a fair and public hearing by a competent, independent and impartial tribunal established in accordance with the law, and that equality of opportunity for prosecution and defence is a prerequisite for respect for the principle of fair trial (paragraph 6.6 of the Views) (See communication No. 307/1988, John Campbell v. Jamaica, Considerations of March 24, 1993, paragraph 6.4.).
The Committee's assessment of the factual circumstances of the case. The Committee notes that, according to the unconfirmed information provided by the author, Mr. Shikhmuradov was arrested, tried and sentenced to life imprisonment, and has since been unable to contact his wife or any other family members. The Committee notes that it has also not been disputed that Mr. Shikhmuradov's whereabouts are unknown and that his wife and relatives have no information about his health and well-being, despite numerous attempts to contact various authorities. The author claims that she is not even sure if her husband is still alive. The Committee notes that the State party has not refuted the author's claims that she had no contact with her husband for 12 years and that the authorities never provided her with any information about her husband's whereabouts. In the present case, the Committee notes that the State party has failed to provide evidence that it has fulfilled its obligations to protect Mr. Shikhmuradov's life during the 12 years since his conviction. In these circumstances, the author's allegations should be treated with all seriousness (paragraph 6.3 of the Considerations).
The Committee notes that the fact of Mr. Shikhmuradov's incommunicado detention in an unidentified location without access to his family, lawyer or any other person in the outside world is not disputed. The Committee takes note of the author's allegations that members of the People's Council were shown a video recording, which gave the impression that Mr. Shikhmuradov was allegedly under the influence of "psychotropic substances". In these circumstances, taking into account the state of Mr. Shikhmuradov's health prior to his arrest and in the absence of a refutation of the above information by the State party, the Committee concludes that the author's allegations should be treated with all seriousness (paragraph 6.4 of the Views).
With regard to the claim that Mr. Shikhmuradov's detention after sentencing constitutes a violation of article 9 of the Covenant, the Committee notes the author's allegations that he is being held incommunicado in an unknown location without access to a lawyer and without the opportunity to challenge the legality of his detention. In the absence of any information in this regard from the State party, the Committee considers that the author's allegations should be treated with the utmost seriousness (paragraph 6.5 of the Views).
With regard to the author's claims under article 14 of the Covenant, the Committee notes that Mr. Shikhmuradov was initially sentenced to 25 years in prison and that his trial took place on 29 December 2002, just four days after his arrest. According to the author, the court hearing was not open and lasted only one day, and the verdict was handed down solely on the basis of confessions given by Mr. Shikhmuradov under duress. The Committee further notes that, following a separate and closed hearing on the following day, 30 December 2002, the People's Council sentenced Mr. Shikhmuradov to life imprisonment. The Committee takes note of the author's allegations that Mr. Shikhmuradov was not given sufficient time to prepare his defense, could not consult with his lawyers, and was not given the opportunity to have his indictment and sentence reviewed by a higher court in accordance with the law. The Committee notes the author's unconfirmed claim that the People's Council, which is a political body headed by the President and composed of members of Parliament and ministers, cannot be considered a competent, independent and impartial court within the meaning of article 14, paragraph 1, of the Covenant and in accordance with its requirements. In the absence of any information in this regard from the State party, the Committee considers that the author's allegations should be treated with the utmost seriousness (paragraph 6.6 of the Views).
With regard to article 15, paragraph 1, of the Covenant, the Committee takes note of the author's allegations that the State party's authorities imposed a more severe punishment than that which was to be applied at the time of the commission of the criminal offence. The Committee takes note of the author's unconfirmed claim that the most severe punishment under Turkmen law at the time of the commission of the alleged crimes was imprisonment for a term of 25 years, as stipulated by the Criminal Code of Turkmenistan in force at that time. The Committee also notes that the decision to impose life imprisonment as a punishment was taken by the People's Council after Mr. Shikhmuradov was convicted (paragraph 6.7 of the Views).
As for the author, the Committee takes note of the suffering and mental anguish caused by her husband's incommunicado detention and disappearance. Referring to its jurisprudence, the Committee concludes that the facts before it disclose a violation of article 7 of the Covenant in respect of the author (paragraph 6.8 of the Views) (See Al-Abani v. Libyan Arab Jamahiriya, paragraph 7.5).
Conclusions of the Committee. The Human Rights Committee considers that the facts before it disclose violations by the State party of articles 6, paragraphs 1, 7, 9, and 14, paragraphs 1 and 5, of the Covenant in respect of Mr. Shikhmuradov. They also reveal a violation of article 7 of the Covenant in respect of the author (paragraph 7 of the Views).
In accordance with article 2, paragraph 3, of the Covenant, the State party is under an obligation to provide Mr. Shikhmuradov and the author with an effective remedy, in particular: (a) to immediately release him if he is still secretly detained; (b) to conduct a thorough and effective investigation into his detention, disappearance and unfair court proceedings; (c) Provide him and the author with detailed information on the results of the investigation; (d) In the event of Mr. Shikhmuradov's death, return his remains to the author; (e) Criminalize, convict and punish those responsible for the violations; (f) Provide appropriate compensation to the author of the communication and Mr. Shikhmuradov for the violations committed. The State party is also under an obligation to take measures to prevent the recurrence of such violations in the future (paragraph 8 of the Views).