Uzbekistan: Visits & Communications

Uzbekistan: Death Sentence of Farid Nasibullin

Violation alleged: Non-respect of international standards relating to the imposition of capital punishment

Subject(s) of appeal: 1 male

Character of reply: No response

Observations of the Special Rapporteur

The Special Rapporteur regrets that the Government of Uzbekistan has failed to cooperate with the mandate he has been given by the United Nations Commission on Human Rights.

Urgent appeal sent on 16 February 2005 with the Special Rapporteur on independence of judges and lawyers and the Special Rapporteur on Torture

Urgent appeal sent concerning the reported imminent execution of Farid Nasibullin for whom an urgent appeal was sent on 26 June 2003 with the Special Rapporteur on torture expressing concerns that his confessions which led to his death sentence were obtained under torture (E/CN.4/2004/56/Add.1, para. 1887). In a letter dated 16 July 2003, your Excellency advised that Farid Nasibulin was sentenced to capital punishment for committing murder, robbery and drug related crimes by the Tashkent Provincial Court in February 2003, a decision that was upheld in April 2003 by the Tashkent Provincial Court of Appeals. Your letter further indicated that in April 2003 he submitted an appeal to the Clemency Commission under the President’s Office of Uzbekistan, which suspended his execution pending its final decision (ibid, para. 1888). According to the latest information we have received, Mr. Nasibullin has been prevented from requesting access to his defense lawyer by the Head of the Tashkent prison who demands that a person sentenced to death write to him personally through a relative in order to be able to exercise that right.  Making access dependent on such a contingent factor amounts to a violation of internationally accepted standards guaranteeing the right to adequate legal assistance at all stages of criminal proceedings (see attached). In an attempt to overcome this unlawful restriction to access counsel, a defence lawyer from the organization which has been involved in Mr. Nasibullin’s case has tried to review his file but, to date, he has been denied access to the criminal case. Further, we understand that the date of execution of Mr. Nasibullin is being kept secret. This lack of transparency denies the human dignity of the person sentenced as well as the rights of family members to know the fate of their relative. In the absence of any indication that the allegations of torture have been adequately reviewed by either the judicial or administrative authorities, we would respectfully request your Excellency’s Government to suspend the implementation of the death penalty of Farid Nasibullin, to review the procedures followed in this case, and to ensure that the trial complied with all applicable international standards and principles.

Uzbekistan: Death Sentences of Nazirzhan Azizov, Khurshidbek Salaidinov, and Bakhtiorzhan Tuichev

Violation alleged: Non-respect of international standards relating to the imposition of capital punishment

Subject(s) of appeal: 3 males

Character of reply: Allegations rejected but without adequate substantiation

Observations of the Special Rapporteur

The Special Rapporteur finds that the Government of Uzbekistan’s conclusory assertions that torture was not used to elicit confessions even though no investigation has been conducted to lack credibility.  The SR does, however, appreciate the Government’s assurance that Nazirzhan Azizov, Khurshidbek Salaidinov, and Bakhtiorzhan Tuichev will not be executed until the Human Rights Committee has issued its views and these have been considered by the Government.

Urgent appeal sent on 12 May 2005 with the Special Rapporteur on the independence of judges and lawyers and the Special Rapporteur on torture

We would like to draw the attention of your Government to information we have received regarding Nazirzhan Azizov, aged 33, Khurshidbek Salaidinov, aged 21, and Bakhtiorzhan Tuichiev, aged 31, all detained in Andizhan prison. According to the allegations received:

They are at imminent risk of execution after having been tortured in pre-trial detention. Nazirzhan Azizov, Khurshidbek Salaidinov and Bakhtiorzhan Tuichiev were convicted of two murders by Andizhan Regional Court and sentenced to death in October 2004. Reports indicate that they were tortured to extort a confession to the murders they were subsequently convicted of. In particular, the families of Bakhtiorzhan Tuichiev and Khurshidbek Salaidinov claimed that they had been beaten so badly in custody that they were unable to move for several weeks. During the trial the three men alleged in court that they had been tortured to make them sign confessions to the murders, but the court failed to investigate their claims. Moreover, they were not allowed to meet with lawyers hired by their families, and were only able to meet with a state-appointed lawyer after they had been in custody for a month. All three men appealed against their convictions and sentences and/or requested a re-trial. Their requests were rejected by the Andizhan Regional Court in December and again in February.

Nazirzhan Azizov, Khurshidbek Salaidinov and Bakhtiorzhan Tuichiev have submitted communications to the Human Rights Committee under the First Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR). The Committee has requested your Excellency’s government to take interim measures of protection in these cases, i.e. not to carry out the death sentence as long as the communications are pending before it, on 14 and 20 January 2005 respectively. On 26 April 2005, the Committee reminded your Excellency’s government that these requests remain valid. Considering, however, that your Excellency’s government executed another death row detainee (Mr. Akhrorkhuzha Tolipkhuzhaev) on whose case the Committee had also requested interim measures of protection, our concerns are only partially alleviated by the Committee’s requests in the present cases.

While we are fully aware of the serious nature of the crime these three men have been found guilty of, we respectfully remind your Excellency that “in capital punishment cases, the obligation of States parties to observe rigorously all the guarantees for a fair trial set out in Article 14 of the (International Covenant on Civil and Political Rights) admits of no exception” (Little v. Jamaica, communication no. 283/1988, Views of the Human Rights Committee of 19 November 1991, para. 10). Relevant to the cases at issue, these guarantees include the right not to be compelled to confess guilt, the right to adequate time and facilities for the preparation of one’s defence, and the right to communicate with counsel of one’s own choosing.

We also recall that Commission on Human Rights resolution 2005/39 urges States to ensure that any statement, which is established to have been made as a result of torture shall not be invoked in any proceedings, except against a person accused of torture as evidence that the statement was made. This principle is an essential aspect of the right to physical and mental integrity set forth, inter alia, in the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights and the Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

Furthermore, we would like to refer your Excellency's Government to Basic Principles on the Role of Lawyers, adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba, 27 August to 7 September 1990, in particular:

- principle 1. All persons are entitled to call upon the assistance of a lawyer of their choice to protect and establish their rights and to defend them in all stages of criminal proceedings.

- principle 5. Governments shall ensure that all persons are immediately informed by the competent authority of their right to be assisted by a lawyer of their own choice upon arrest or detention or when charged with a criminal offence.

 

We urge your Excellency’s Government to take all necessary measures to guarantee that the rights under international law of Nazirzhan Azizov, Khurshidbek Salaidinov and Bakhtiorzhan Tuichiev are respected. Considering the irremediable nature of capital punishment, this can only mean suspension of the death sentence against the three men until the allegations of torture have been thoroughly investigated and all doubts in this respect dispelled. Moreover, it is imperative that they be granted access to lawyers of their own (or of their families’) choosing without delay. Finally, international law requires that the accountability of any person guilty of subjecting Nazirzhan Azizov, Khurshidbek Salaidinov and Bakhtiorzhan Tuichiev to torture is ensured.

In view of the urgency of the matter, we would appreciate a response on the initial steps taken by your Excellency’s Government, including confirmation that Nazirzhan Azizov, Khurshidbek Salaidinov and Bakhtiorzhan Tuichiev are still alive.

In connection with the present cases, we would also like to recall that Commission on Human Rights resolution 2005/59 “calls upon all States that still maintain the death penalty to … make available to the public information with regard to the imposition of the death penalty and to any scheduled execution” and to “to provide to the Secretary-General and relevant United Nations bodies information relating to the use of capital punishment and the observance of the safeguards guaranteeing protection of the rights of those facing the death penalty”. The resolution thus reaffirms the need for transparency in the use of the death penalty to which the Special Rapporteur on extrajudicial, summary or arbitrary executions draws the Commission’s attention in his most recent Report (E/CN/2005/7, paras. 57-59). As the Special Rapporteur states there: “Countries that have maintained the death penalty are not prohibited by international law from making that choice, but they have a clear obligation to disclose the details of their application of the penalty.” (para. 59). We therefore respectfully request your Excellency’s Government to submit to us and to render public detailed information concerning the number and the identity of, and the crimes committed by the persons subjected to the capital punishment in recent years, as well as of those currently on death row.

Moreover, it is our responsibility under the mandates provided to us by the Commission on Human Rights and reinforced by the appropriate resolutions of the General Assembly, to seek to clarify all cases brought to our attention. Since we are expected to report on these cases to the Commission, we would be grateful for your cooperation and your observations on the following matters:

1.     Are the facts alleged in the above summary of the case accurate?

2.     Please provide the details, and where available the results, of any investigation, medical examinations, and judicial or other inquiries carried out in relation to the allegations that Nazirzhan Azizov, Khurshidbek Salaidinov and Bakhtiorzhan Tuichiev were subjected to torture while in pre-trial detention. If no inquiries have taken place or if they have been inconclusive please explain why.

3.     Please provide the full details of any prosecutions which have been undertaken with regard to the alleged torture of Nazirzhan Azizov, Khurshidbek Salaidinov and Bakhtiorzhan Tuichiev. Have penal, disciplinary or administrative sanctions been imposed on the perpetrators?

4.     Please provide full details with regard to the legal assistance Nazirzhan Azizov, Khurshidbek Salaidinov and Bakhtiorzhan Tuichiev have enjoyed from their arrest on (until to date). Is it accurate that, although their families hired legal counsel to assist them, they were not allowed to avail themselves thereof? If so, on what grounds?

5.     Please provide details concerning the legal remedies already exercised by Nazirzhan Azizov, Khurshidbek Salaidinov and Bakhtiorzhan Tuichiev, and those still open to them to challenge their conviction and the sentence imposed.

Response of the Government of Uzbekistan dated 10 June 2005

“The PM has also honour to emphasize that the enclosed information comprehensively reveals the inaccurateness, groundlessness and unsubstantiated nature of allegations in the subject communication.

In accordance with the decision of a judicial panel of the Supreme Court of the Republic of Uzbekistan on criminal cases dated 8 February 2005 and amended decision of the Court of Appeal of the Andijan regional court dated 14 December 2004 and the verdict of the court dated 27 October 2004, Mr. Baktiorzhan Tuichiev was sentenced  to death sentence pursuant to the subparagraphs ((B,N, O, M, P) part 2, of the Article 97, subparagraphs (A,N,O,M,P), part 2 of the Article 25 , 97, subparagraph “B”, part 4, of the Article 164, subparagraph “B”, part 4, of the Article 25, 164 and subparagraph “B”, part 4, of the Article 169 and the Article 276, part 1, of the Criminal Code of the Republic of Uzbekistan.

Mr. Nazirzhan Azizov was sentenced to death sentence pursuant to subparagraphs (N,O,M,P), part. 2, of the Article 97, subparagraphs (A,N,O,M,P), part 2, of the Article 25, 97, subparagraphs (B), part 2 of the Article 25 , 97, subparagraph “B”, part 4, of the Article 164, subparagraph “B”, part 4, of the Article 25, 164 and subparagraph “B”, part 4, of the Article 169 and the Article 276, part 1, of the Criminal Code of the Republic of Uzbekistan.

Mr. Khurshid Salaydinov was sentenced to death sentence pursuant to subparagraphs (???), part. 2, of the Article 97, subparagraphs (N,O,M,P), part 2, of the Article 25, 97, subparagraphs (A,N,O,M,P), part 2 of the Article 25 , 97, subparagraph “B”, part 4, of the Article 164, subparagraph “B”, part 4, of the Article 25, 164 and subparagraph “B”, part 4, of the Article 169 and the Article 276, part 1, of the Criminal Code of the Republic of Uzbekistan.

In accordance with the court verdict they were found guilty of committing the following crimes:

Having been imprisoned twice before B. Tuichiev gathered M. Umarov, M. Azizov, Kh. Salaydinov, Kuchkarov and I. Akhmedov, who is being on wanted list as a criminal group to illegally possess the property of other people by robbery and committing premeditated murders and other grave and very grave crime.

In February 2004 B. Tuichiev and N. Azizov killed D. Egamberdieva premeditatedly and under aggravated circumstances in order to seize her property by robbery. The criminal group took D. Egamberdieva away by car and killed her premeditatedly. B. Tuichiev and Kh. Salaydinov participated in committing the crime as a “back-up”.M. Umarov and N. Aziziov killed Ms. Egamberdieva through torture by suffocating and physically assaulting, they took her golden earings. To conceal the crime they dropped the corps of Ms. Egamberdieva into Ferghana channel.

The criminal group planned to possess by robbery and attempting to kill the property of G. Kurbanbaeva and people, who have been renting premises at her home.

Under the plan of crime of B. Tuichiev, M. Umarov, N. Azizov and Kh. Salaydinov in the same day at around midnight attempted to kill premeditatedly Ms. G. Kurbanbaeva as well as Ms. M. Zaynobiddinova and Ms. Yunusova, who lived at her home, in order to seize their property by robbery.

In March 2004, B. Tuichiev killed Ms. N. Niyazova in Shahrihan City by suffocating. Kh. Salaydinov helped B. Tuichiev to commit this crime. The objective of the crime was to possess the jewelry of Ms. Niyazova amounting to 515 000 soums and pulling out her golden teeth amounting to 108 000 soums.

On 7 April 2004 B. Tuichiev, N. Azizov and Kuchkarov assaulted Mr. R. Ahunov in his car in Shahrihan City, killed him by suffocating and seized his monex amounting 480 000 soums. In order to conceal the crime they dropped his corps into the channel in Tayd village.

B. Tuichiev and I. Akhmedov, who is currently on the wanted list, stolen a cattle belonging to Mr. G. Omonov in Shahrihan district in March 2004.

Law enforcement officers, in accordance with the provisions of the Criminal Procedure Code arrested B. Tuichiev, Kh. Salaydinova and N. Aziziov on 2 May 2004 by confirmed material evidences and in the presence of witnesses. All allegations of Bakhodir Tuichiev, I. Kimsanov and N. Salaydinova  in their communication to the UN Human Rights Committee are groundless and unsubstantiated. In particular, the allegations of course of court hearings, proof and planting of evidences and absence of access to a lawyer do not correspond to the real situation. Besides the frank confession of guilt in the court by B. Tuichiiev, N. Azizov and Kh. Salaydinov, their guilt in committing the crimes were confirmed by the following:

- confessions and evidences provided by M. Umarov and T. Kuchkarov, who were also convicted, and by victims—R. Niyazova, G. Kurbanbaeva, R. Yunusova, A. Ahunov, M. Zaynobiddinova, R. Rejabov, Omonov, eye-witnesses—Yusupov, Nishonov, Sharipova, Karimov, Haydarov, Tursunov, Rizaeva, Orinboev, Mamathonov, Bahodir Tuichiev, E. Tuichiev, Ganiev, Komilov, Tursunov, Tojieva, Qaraboeva and Holmatov.

- conclusions of forensic-psychiatric examinations, overview of the crime sights;

- verifying the testimonies of convicted persons at crime sights, obtaining material evidence;

- written confirmations of victims and eye-witnesses, including photo pictures and videotapes and other evidences collected during the process of this case.

All convicted persons were granted with full access to lawyers and all investigation actions have been accomplished with participation of lawyers from the time of their arrest on 2 May 2004.  Lawyers—Ms. Q. Abdullaeva, Mr. A. Rakhimov, Ms. Karimova, Mr. H. Akramov, Ms. Yu. Nuriddinovy, Ms. D. Botiralieva, Ms. Akhmedova and Mr. O. Azizov, have defended the above- mentioned convicted persons at all stages of preliminary investigation and court hearings.

The convicted persons were not subjected to physical or psychological pressure, including torture or any form of ill-treatment, which is confirmed by case materials.

The convicted persons confirmed that interrogations during preliminary investigation have been held with participation of lawyers, they have given their confessions under their own wish and there has been no pressure exerted against them.

Preliminary investigation and judicial processes have been implemented in conformity with provisions of the Criminal Procedure Code of the Republic of Uzbekistan, and the conclusions on the guilt of convicted persons have been substantiated.

The court properly identified punishment measures against B. Tuichiev, N. Azizov and Kh. Salaydinov as death penalty which revealed the following crimes: B. Tuichiev leading an organized criminal group, at aggravated circumstances participated in killing 3 persons and attempts to kill 3 persons through crimes of robbery and thefts; N. Azizov actively participating in the organized criminal group, at aggravated circumstances participated in killing two persons and attempts to kill 3 persons through crimes of robbery; Kh. Salaydinov actively participating in the organizued criminal group, at aggravated circumstances participated in killing 2 persons and attempts to kill 3 persons through crimes of robbery.

The sentences have been taken in view of absolute danger of these persons to the society and absence of effect and possibiltiy for reformatory or correction work with regard to them.

Following the request of the UN Human Rights Committee in accordance with rule 92 of the Rules of Proceudres the State party has taken interim measures to suspend the sentences against them.

In the meantime these convicted persons are being held in the penitentiary institution of the Main Directorate on Execution of Punishment of the Ministry of Internal Affairs of the Republic of Uzbekistan.

Health condition of B. Tuichiev, N. Azizov and Kh. Salaydinov is registered as satisfactory level.

Uzbekistan: Deaths in Andijan, 13 May 2005

Violation alleged: Deaths due to the excessive use of force by law enforcement officials

Subject(s) of appeal: Hundreds of people (persons exercising their right to freedom of opinion and expression)

Character of reply: Allegations rejected but without adequate substantiation

Observations of the Special Rapporteur

The Special Rapporteur wishes to express his concern at the major contradictions between the Government of Uzbekistan’s account of the deaths that occurred in Andijan on 13 May 2005 and the many consistent allegations from other sources.

Allegation letter sent on 19 May 2005 with the Special Rapporteur on freedom of expression

Allegation sent on 19 May 2005 with the Special Rapporteur on freedom of expression concerning the obstruction, harassment and arrests of various members of the media, as well as the deaths of hundreds of people after government troops violently dispersed a peaceful demonstration on 13 May in Andijan. According to the information received:

A peaceful crowd of protesters numbering as many as 10,000 on the town’s main square had gathered to call for justice and for an end to the economic hardship felt by many in the region. Reports indicate that the demonstration was sparked by a smaller protest against the ongoing trial of 23 local businessmen charged with religious extremism. Nevertheless, troops have reportedly opened fire on the crowd from armoured personnel carriers without warning, shooting indiscriminately at men, women and children as they fled from the main square in panic. 

Moreover, US, Russian and British cable channels, CNN, NTV and BBC were all stopped from broadcasting throughout Uzbekistan on 13 May 2005, national news reports were replaced with culture programmes and music clips, and Russian independent websites, www.lenta.ru, www.gazeta.ru and www.fergana.ru, as well as several other Uzbek websites were also blocked within Uzbekistan.

Furthermore, on 14 May 2005, administration officials confiscated documents belonging to reporter and cameraman for the Russian-based Ren TV, Dmitry Yasminov and Vikrot Muzalevsky respectively, and did not allow them to enter Andijan to prepare a report for their news program Nedelya. They were released several hours later and escorted back to Tashkent. In the outskirts of Andijan, that same day, police officers also detained a crew from the Russian television channel NTV, confiscating their papers and demanding that they leave the city. They were also escorted to Tashkent and their identity documents were only returned to them five hours later. Furthermore, Shamil Baygin, a Reuters correspondent and Galima Bukharbayeva, a correspondent for the London-based Institute for War and Peace Reporting, were detained by Andijan police officers on Friday 13 May 2005 and released on Saturday 14 May 2005, when they left Andijan out of fear of reprisal from the authorities.

Response of the Government of Uzbekistan dated 1 July 2005

“The information provided to the Special Rapporteurs does not correspond to the facts.  In reality, the representatives of the media who were at the scene of the events were advised to leave Andijan in the interest of their personal safety.  Certain media and human rights defenders considered this measure by the authorities to be a restriction of their rights.

The allegations are based on information obtained from unreliable sources.  In point of fact, an investigation established the following:

During the armed terrorists’ attacks on a prison and military units in Andijan, they seized a large quantity of weapons and ammunition and killed several prison staff and servicemen; their ranks were swelled by persons whom they had released from prison and who were immediately provided with weapons; 65 persons were taken hostage, of whom 14 were later killed.

After this, the terrorists occupied the Andijan oblast administration building, the approaches to which were blocked by burning vehicles that had been taken during the attacks.  Once inside the building, the terrorists telephoned their relatives and friends and urged them to come to the main square; they also used their weapons to threaten passers-by and people living in the neighbourhood and forced them onto the main square.  As a result, some 300 to 400 people gathered in the square; in their presence, the terrorists called for the violent seizure of power and the creation of a caliphate.  The terrorists later used civilians and hostages as human shields when they left Andijan for Kyrgyzstan.

The nature and course of events in Andijan confirmed that they were the result of subversive activities by extremist groups and their sponsors living abroad.  The organizers of these events made use of methods typical of terrorist and extremist organizations:

-  use of weapons during attacks;

-  release of convicts from prison;

-  hostage-taking and occupation of local administration buildings;

-  the nature of the attackers’ demands (release prisoners convicted for terrorist activities);

-  use of civilians - old people, women and children - as human shields.  Using these human shields, the attackers were the first to open fire from more than 300 firearms, with which they killed 45 civilians and 37 law enforcement officers.

During the terrorist acts, 73 vehicles were set on fire or damaged, and damages amounting to over 3 billion sum were caused to more than 20 buildings.

Paragraph 2: The Uzbek side declares that the events in Andijan were in no way related to the trial of 23 so-called “businessmen”.

The individuals referred to as businessmen were being criminally prosecuted in accordance with Uzbek law for crimes against the constitutional system of the Republic of Uzbekistan.

The picketing outside the courthouse in Andijan, where the criminal case of the 23 members of the Akramiya movement was being tried, was staged.  The organizers recruited known terrorists from Kyrgyzstan and Uzbekistan, who were provided with suits that had been specially acquired for the occasion, to take part in the picketing.  The troops did not open fire on men, women and children fleeing from the square in panic, as alleged in the information provided to the Special Rapporteurs.

The Uzbek authorities took all the necessary measures to avoid the use of force and made serious compromises:  they agreed to release six detained extremists and offered to provide buses to transport the terrorists, together with their weapons, to the district to which they wanted to go.  However, the terrorists kept setting more and more unfeasible conditions; in particular, they demanded the release of a number of imprisoned leaders of religious extremist organizations and their transport by plane to Andijan.  Thus, by politicizing their demands, the terrorists brought the negotiations to a deadlock.

Aware that Government troops were preparing to storm the oblast administration building and wishing to forestall them, the criminals left the building in columns using hostages as cover and making use of weapons.

Many people who were hoodwinked and deceived by their fanatical leaders and the individuals who carried out the orders of their foreign patrons and sponsors, died during the aforementioned events.

Paragraph 3: These allegations are completely false.

We understand the natural desire of journalists and agencies responsible for covering events to provide their readers and listeners with factual information.

At the same time, the situation is such that individual agencies and media operate by following orders and are very fond of making completely unfounded insinuations and circulating all kinds of conjectures.

Uzbekistan places no restrictions whatsoever on he population’s access to the media, including the Internet.  This is demonstrated by the large number of Internet cafes and Internet providers active in Uzbekistan (since the beginning of 2005, the number of Internet users has risen to 675,000, representing a 137 per cent increase in Internet use).

Thus, the Uzbek side is perplexed by the aforementioned allegations.

Paragraph 4: These allegations were investigated by the Andijan oblast procurator’s office, which failed to confirm them.  The media representatives referred to in the allegations - Dmitry Yasminov, Vokrot Muzalevsky, Shamil Bayigin and Khalima Bukharbayeva - and the Russian television channel NTV, did not complain to the relevant bodies concerning their detention or the confiscation of their documents, which demonstrates that the allegations are unfounded.

Paragraph 5: The Uzbek authorities take all the necessary measures to conduct thorough investigations.  To date, 102 persons have been detained for involvement in terrorist activities.  In the course of a thorough investigation conducted by the investigative authorities, half of those persons were released from custody and subjected to other preventive measures, since their hands had not been soiled by the blood of innocent victims.

The investigation is being conducted openly:

-          a working group to monitor the investigation of the tragic events in Andijan has been established; it is composed of representatives of the diplomatic corps in Tashkent.  To date, the working group has held three meetings to discuss the preliminary results of the investigation and to examine material evidence, including documentary photographs;

-          at press conferences held by the President of Uzbekistan, Mr. Islam Karimov, on 14 and 17 May 2005, for local and foreign media and representatives of the diplomatic corps in Tashkent;

-          in a briefing held by the Procurator‑General of Uzbekistan, Mr. R.K. Kadyrov, on 17 May 2005, and a briefing by the chief of the press service of the Office of the Procurator‑General on 27 May 2005;

-          at receptions held by the Office of the Procurator-General of Uzbekistan for representatives of embassies and international organizations (United Nations, Organization for Security and Cooperation in Europe) in Tashkent.

Paragraph 6: The Government of Uzbekistan takes all necessary measures to guarantee the rights and freedoms of all persons in the territory of Uzbekistan.

Uzbekistan: Death Sentences of Yuldash Kasymov and Alisher Khatamov

Violation alleged: Non-respect of international standards relating to the application of capital punishment

Subject(s) of appeal: 2 males

Character of reply: Cooperative but incomplete response

Observations of the Special Rapporteur

The Special Rapporteur appreciates the information provided by the Government of Uzbekistan.  With respect to the case of Alisher Khatamov, the SR would note that information regarding the basis for determining his culpability is irrelevant to the question whether his confession was extracted by torture and his death sentence thereby arrived at without respect for due process.  With respect to the case of Yuldash Kasymov, the SR welcomes the Government’s commitment in its submission to the Human Rights Committee that he will not be executed while his case is being examined by the Committee.  The SR would appreciate updated information regarding the situations of Alisher Khatamov and Yuldash Kasymov.

Urgent appeal sent on 29 June 2005 with the Special Rapporteur on the independence of judges and lawyers and the Special Rapporteur on the question of torture

Urgent appeal sent concerning Mr. Yuldash Kasymov, aged 19, and Mr. Alisher Khatamov, aged 27, who appear to be at risk of imminent execution. Reportedly, their conviction and sentence is based on confessions extorted under torture or other forms of ill-treatment.

According to the information received, Yuldash Kasymov was found guilty of the murder of his parents and sentenced to death by the Tashkent City Court on 3 March 2005. The sentence was confirmed by the Supreme Court on 10 June 2005. Reportedly, both Yuldash Kasymov and his brother Mansur were beaten during interrogations in order to force either one of them to plead guilty to the murder. As a result of the pressure, Yuldash ultimately signed the confession statement. A video presented in Court showed that when the investigators took him to the crime scene, his face was covered with bruises. His girlfriend was also reportedly beaten to punish her for insisting that he was innocent, and he was allegedly threatened that she would be raped in front of him if he did not "confess". The lawyer who was hired by his family was only able to have access to him ten or more days after his arrest, when he had already signed the statement. Yuldash Kasymov immediately retracted his "confession" in a letter to the relevant procurator and insisted on his innocence.

In a separate case, Alisher Khatamov was found guilty of the murder of two persons and sentenced to death by the Tashkent Regional Court on 16 March 2005. His sentence was confirmed by the Supreme Court on 14 June 2005. Reports indicate that officers of the Bukinsky district police and the regional police of Tashkent beat him and all the members of his family. Moreover, both he and his father were reportedly told that his mother and his sister would be raped unless Alisher confessed to having committed the crime. Reports indicate that Alisher Khatamov’s lawyer only got access to him two weeks after he was arrested. During the trial the family complained about the beatings, but this was allegedly ignored by the court.

Yuldash Kasymov and Alisher Khatamov have submitted communications to the Human Rights Committee under the First Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR). The Committee has requested your Excellency’s Government to take interim measures of protection in these cases, i.e. not to carry out the death sentence as long as the communications are pending before it, on 13 April and 13 May 2005 respectively. Considering, however, that, on 1 March 2005, your Excellency’s Government executed another death row detainee, Mr. Akhrorkhuzha Tolipkhuzhaev, on whose case the Committee had also requested interim measures of protection, our concerns are only partially alleviated by the Committee’s requests in the present cases.

Response of the Government of Uzbekistan dated 1 July 2005

Regarding the case of Yuldash Kasymov, the Government referred the Special Rapporteur to its 13 June 2005 submission to the Human Rights Committee.

Regarding the the case of Alisher Khatamov, the Government provided the following observations:

Khatamov, Alisher Makhsudzhanovich, born 1978, convicted on 16 March 2005 by Tashkent Regional Court, under articles 25-97 paragraphs 2 (a), (c), (g) and (i) (premeditated murder), article 164, paragraph 4 (a) (robbery with violence), article 169, paragraph 4 (a) (theft), article 227, paragraph 4 (a) (acquisition, destruction, damage to or concealment of documents, stamps, seals, blank forms), article 247, paragraph 1 (unlawful acquisition of firearms, ammunition, explosive substances or devices), article 276, paragraph 1 (unlawful possession, production, purchase, storage and other activities with narcotic and  psychotropic substances without  the purpose of resale), and article 59 (determination of penalties for  commission of multiple crimes) under the Criminal  Code of  the Republic of Uzbekistan.

The court found Alisher Khatamov guilty of committing the crimes in the following circumstances.

On the night of 9-10 October 2003, Khatamov unlawfully entered the home of Ms. D. Yusupova and Ms. S. Yusupova, Bldg. 5, 3rd Lane, Tinchlik St, in the town of Buka, with the aim of stealing their personal property.  He stole 12 gold objects worth 1,200,000 Uzbek SUM, 1,570,000 SUM in cash, 11 gold objects worth 1,125,000 SUM, a further 700,000 SUM in cash and a video cassette.  The total value of the property stolen from the two women was 4, 685,000 SUM.  In addition, Khatamov unlawfully took the internal passports of Mr. T. Yusupov and Ms. D. Yusupova.

On 27 April 2004, Khatamov committed armed robbery against Ms. F. Vakhobova, stealing 1,200,000 SUM from her.

Continuing his criminal activities, in September 2004, intending to murder his uncle Mansur Khatamov and aunt Saiora and steal their property, Khatamov stole a 16-calibre double‑barrelled shotgun and ammunition - four 16-calibre cartridges, two 12-calibre cartridges, 200 grams of lead shot, and 21 percussion caps - from the home of his grandfather, M. Khatamov.

He modified the shotgun by sawing off the barrel, and he then unlawfully kept it in his home.

On the night of 6-7 October 2004, with the aim of carrying out his criminal design, Khatamov broke into his uncle’s and aunt’s home.  Threatening them with the sawn-off shotgun, he forced his uncle to tie his wife’s hands with adhesive tape, then demanded money and other valuables.  Mansur Khatamov was forced to open a metal safe in the room which contained 2,000 US dollars, 600,000 SUM, a gold chain and two gold bracelets.

Proffering resistance, the uncle, Mansur Khatamov, threw himself on Alisher; Alisher fired at his head with the shotgun, causing him serious injury.  Then Saiora Khatamova trying to defend her husband, also threw herself on him, but Alisher fired at her several times, hitting her once in the right arm and injuring her seriously.  Alisher Khatamov thereupon drew a knife and stabbed his uncle several times in the chest and neck:  his uncle died on the spot.

Khatamov, bent on murder for personal gain, stabbed his aunt a number of times in the arms then, catching her, seized her head and cut her throat with the same knife:  she, too, died on the spot.

Khatamov took the 2,000 US dollars, the 600,000 SUM and the gold chain and bracelets and left the scene of the crime.

In his communication to the United Nations Human Rights Committee, the author, Mr. M. Khatamov, stated that:

(a)        During the investigation, Alisher Khatamov was subjected to physical and psychological pressure by militia officers and all the admissions he made were extracted by torture without a lawyer present;

(b)        Defence witnesses were put under pressure during the trial, and many witnesses were not questioned as a result of unmotivated refusals by the judge;

(c)        The court paid no attention to these violations, and sentenced Alisher Khatamov to death without justification.

The arguments adduced in Mr Khatamov’s complaint are unfounded and shown to be so by the evidence in the case file.

During the pretrial investigation, a bag containing rubber bands for tying wads of money, empty jewel cases, keys later recognized by Ms. Vakhobova, and the sawn-off portions of the shotgun barrel and stock were recovered from the toilet at Khatamov’s home on the strength of information he provided.  During the search Mr. Khatamov voluntarily produced the sawn-off 16-calibre shotgun he had modified, a knife with traces of blood, a mask, gloves, a sweater, and a T-shirt with traces of blood which he had hidden in the vineyard.

During verification of Khatamov’s testimony at the crime scene in the presence of a lawyer, a white bag containing tights, trainers, a black cap with eyeholes cut in it, and adhesive tape, all of them with spots that looked like blood, were found in the attic of his home while a metal-cutting tool and fine metal shavings were found in his cellar.

During his initial interrogation as a witness on 14 October 2004, later that day when questioned as a suspect, and on 16 October when questioned as the accused, Khatamov, in the presence of Ms. M. Ergasheva, the lawyer acting in his defence during the pretrial investigation, provided detailed testimony about his crimes.  No one stated that Khatamov had been pressured or beaten by militia officers or complained about his state of health.

Later, during verification of his testimony at the crime scene in the presence of Ms. Ergasheva and official witnesses, Khatamov also provided detailed information but did not mention any pressure being applied to him.

At his trial, Khatamov stated the following:

With the aim of personal gain he decided to steal property from Ms. S. Yusupova, as he was reliably informed that she had money and gold objects. To that end, one night in early October 2003 he used a saw and hacksaw to cut through the roof of the Yusupov family home, and on the night of 9-10 October he used this hole in the roof to break in.  Once inside the room, he found in a cupboard a packet containing money, and in a sideboard, gold jewellery in the shape of four pairs of earrings and five rings, which he put in a string bag.  He left the scene of the crime through the hole in the roof.

As to the commission of armed robbery, he explained that, needing money he decided in April 2004 to steal some from Ms. F. Vakhobova, who bought and sold gold items.  To commit this crime he prepared a black cap with eyeholes cut in it, adhesive tape and gloves, and, arming himself with a knife, entered the garden of the Vakhobova house on the night of 27 April 2004.  Cutting the telephone wires with a knife, and with a pair of pliers he was carrying cut through the iron grating over the window, through which he then entered the house.  Going into the bedroom, he woke up Ms. Vakhobova, ordered her to keep quiet, gagged her with adhesive tape then, threatening her with his knife, demanded money.  She took a bag containing some money out from under her bed, then unexpectedly hit him a number of times over the head with some object and ran out of the room screaming.  He grabbed the bag and left the scene of the crime.  When he reached home he found 1,200,000 SUM in the bag.  He treated his head wound himself, and did not go to a doctor.  He used the money to buy for Ms. G. Usmanova building materials, clothing, a camera, a television set and other things.

He further explained that, with the intention of committing armed robbery on his uncle Mansur Khatamov, in late August 2004, he secretly took from his grandfather Mazhid Khatamov’s home a 16-calibre shotgun, with one round, three cartridges, powder, shot and caps.  He sawed off the stock and barrel of the shotgun and kept the modified weapon in his room.

On the night of 7 October 2004, he armed himself with the shotgun and three rounds and a knife, put on the mask and gloves that he had prepared, and, removing a pane, entered his uncle’s home through a window.  Going into the bedroom, he woke up his uncle and aunt and demanded US dollars and other money from his uncle, whom he ordered to tie his wife’s wrists with adhesive tape.  His uncle did so and opened a safe in the room, taking out 260,000 SUM. 

But then his uncle threw himself on Khatamov, who, taken by surprise fired his shotgun, hitting his uncle in the head.  At that moment his aunt Saiora also attacked him, but when he pulled the trigger, the gun misfired.  Re-cocking it, he fired again and his aunt in the arm.  When his uncle threw himself at Khatamov a second time, he began to stab him in the chest and slashed his aunt’s arms.  When his uncle stopped moving, he chased after his aunt, caught up with her in the yard, and cut her throat.  He went back into the room, took the gun and returned home across the common courtyard.  Admitting to the murder, he stated that he had not wanted to kill his relatives:  he had only taken the gun and knife to frighten them.  At the same time he denied taking US$ 2,000, a gold chain and two bracelets from them.  He had given the 260,000 SUM he stole to Ms. G. Usmanova.  Khatamov stated that his admissions had been made voluntarily, without coercion, and no physical or psychological pressure had been put on him.

Khatamov’s guilt is also borne out by the following:

-        The testimony given in court by Ms. D. and Ms. S. Yusupova, victims, who testified that on the morning of 10 October 2003, they found a hole in their ceiling through which persons unknown had entered the room and stolen money and valuables.  The valuables included:  gold rings and earrings worth 1,125,000 SUM, and 700,000 SUM in cash; gold ornaments worth 1,200,000 SUM and 1,570,000 SUM, the passports of Ms. D. Yusupova and her father Teshaboy Yusupov, and a video‑recording of a wedding;

-        The testimony given in court by Ms F. Vakhobova, victim, that on the night of 27 April 2004, she had been woken by an unknown man in a mask who entered her bedroom, gagged her with adhesive tape and, threatening her with a knife, demanded money.  Fearing for her life and that of her son, a minor, she had taken out from under the bed a bag of money and handed it over.  Then, acting in her own defence, she had taken a knife out from under her pillow and stabbed the criminal several times before running from the room.  Neighbours came running in answer to her screams and noticed that the window grating was broken; the criminal had made his escape through the hole.

-        The testimony in court by Ms. S. Mazhitova, victim, that on the day before the incident, 6 October 2004, her mother, Saiora Khatamova, had shown her gold ornaments - a chain and two bracelets - which she promised to give her.  At her mother’s insistence, she had put them in her father’s safe, where there were also US$ 2,000 and some 600,000 SUM.  That night she had been woken by the screams of her uncle Makhsud Khatamov, who was calling her father by name.  Later she learned that her parents had been murdered;

-        The testimony in court by witness Ms. L. Khatamova that going out into the courtyard on the night of 7 October 2004, she had discovered Saiora lying face down.  Frightened, she had called her husband, Makhsud Khatamov, and her sons Alisher and Akram, who told her that Mansur and Saiora Khatamova were dead.  While searching their home, militia officers found parts of a shotgun barrel and a shotgun stock in the toilet, and a sawn-off shotgun and blood-spattered clothing under a vine trellis.  Her son Alisher later confessed to the murder of the Khatamovs, to stealing from the Yusupovs, and to the armed assault on Ms. Vakhobova and theft of her money which he had passed on to Ms. G. Usmanova;

-        The testimony in court of witness Ms. G. Usmanova, that she had known Katamov since he was a schoolboy.  As he was her godson, he often used to visit them.  In October 2003, at his suggestion, they went to the “Ippodrom” market and bought clothes for her, her brother, and the children.  In April 2004, Khatamov brought her 1,200,000 SUM which they used to buy building materials, an LG television set, a camera, clothes and other things.  On 8 October 2004, he brought her more money, this time 250,000 SUM, which she used to buy building materials.  She knew nothing about crimes committed by him;

-        The conclusions of a forensic examination which established that the bruises sustained by Ms. F. Vakhobova to her rib cage, knees and left wrist were minor injuries;

-        The findings of forensic examinations which established that:

The death of Mansur Khatamov was caused by a combination of injuries:  penetrating knife wounds to the lungs and heart ventricles, open cerebrocranial trauma and internal bleeding as a result of a gunshot wound; and

The death of Saiora Khatamova was caused by severe haemorrhage resulting from the severing of her carotid artery and adjoining veins in the neck;

-        The official report on the recovery of material evidence:  a sawn-off hunter’s shotgun from No. 30, Zhura Yorov St. in the town of Buka, the domicile of Alisher Khatamov;

-        The findings of a forensic ballistics test showing that the recovered sawn-off shotgun had been altered from a double-barrelled cocking-action hunting firearm, 16‑calibre, No. 159753, Model B, manufactured in 1958, usable for shooting and a firearm;

-        The official crime scene report and record of recovery of a spent cartridge case discovered at 30, Zhura Yorov St., Buka, where the Khatamov couple, victims, lived;

-        The findings of a forensic ballistics test showing that the recovered cartridge case was in good working order and capable, when loaded with ammunition, of being fired from a 16 calibre firearm, and had been used in a discharge from the right-hand barrel of the 16-calibre sawn-off shotgun that was an exhibit in the investigation;

-        The official report on the recovery of material evidence - the barrel and part of the stock of a double-barrelled shotgun, powder, shot and metal filings (shavings) discovered at 30, Zahra Yorov St., Buka, the home of Alisher Khatamov;

-        The finding of a forensic ballistics test that the portion of the double barrel and wooden stock, and the 16-calibre sawn-off double-barrelled shotgun presented in the course of the investigation had once formed a single firearm, and that the metal filings (shavings) were of materials identical to those of the portion of the gun stock and the piece of double barrel;

-        The official identification of material evidence - sawn-off shotgun, powder and shot, by their owner, Mazhit Khatamov;

-        The official records of recovery of material evidence - an Uzbek national knife, adhesive tape, trainers, tights, sports shirt, sweater, gloves, cap with eye-holes, at 30, Zhura Yorov St., Buka, the home of Alisher Khatamov;

-        The official identification of material evidence - sports shirt, sweater, cap with eye‑holes, by Ms. L. Khatamov, as belonging to her son, Alisher Khatamov;

-        The findings of a forensic biological examination, that:

The Uzbek knife, sports shirt, sweater, gloves, tights and trainers submitted for forensic examination bore traces of blood belonging to Saiora Khatamova’s blood group;

The adhesive tape and hat with eye-holes submitted for forensic examination bore traces of blood belonging to Saiora and Mansur Khatamov’s blood groups;

-        The finding of a forensic medical examination that two stab wounds were identified on slivers of skin from the chest area of the corpse of Mansur Khatamov, which may or may not have been inflicted by the Uzbek knife submitted for forensic examination;

-        The finding of a forensic medical examination that two stab wounds were identified on slivers of skin from the area of both right and left forearms of the corpse of Saiora Khatamova which may or may not have been inflicted by the Uzbek knife submitted for forensic examination;

-        The official identification of material evidence - a bag, empty jewel cases and keys, by their owner, Ms. F. Vakhobova, victim;

-        The finding of a forensic biological examination that curtains recovered from Bldg 2, Bobur St. Entry 1, Buka, the home of Ms. F. Vakhobova, and submitted for examination, bore traces of blood from the blood group of Alisher Khatamov;

-        The official record of recovery of material evidence - building materials, clothing, an L.G. television set, camera, children’s bicycles and the sum of 28,000 SUM, recovered from Bldg. 44, Zhalilov St., Buka, the home of Ms. G. Usmanova.

According to the forensic psychiatric examination of Alisher Khatamov, he was of sound mind when he committed the acts he has been charged with.  The actions of Khatamov have been correctly classified according to law.

The sentence on the condemned man is commensurate with the offence.

From the record of the court hearings it can be seen that on application by counsel Ms. M. Ergashova, the following additional witnesses were subpoenaed and questioned:  militia officers A. Babakhodzhaev, O. Alimbetov; official witnesses to the inspection of the crime scene A. Umarov, Zh. Khusainov; chairman of the “Dustlik” makhallin (neighbourhood) committee A. Oblaknlov.

The use against A. Khatamov and other witnesses of unauthorized methods in the course of the pretrial investigation and the court hearing has not been confirmed.

From the moment Alisher Khatamov was taken into custody, all interrogations, investigations and court hearings in relation to his case were conducted with lawyers M. Ergashova and A. Umarov from the Tashkent Oblast Bar Association, and A. Shaimardanov and A. Babakulov, lawyers from the law firm “Lochin Khimoyasi”, in attendance.

No violations of the Code of Criminal Procedure have been established and Khatamov’s conviction is recognized as being correct.

Uzbekistan: Death in Custody of Shavkat Komiljanovich Madumarov

Violation alleged: Death in custody

Subject(s) of appeal: 1 male

Character of reply: Allegations rejected but without adequate substantiation

Observations of the Special Rapporteur

The Special Rapporteur notes that a finding of HIV infection is consistent with allegations that Madumarov received injections against his will and finds the Government of Uzbekistan’s conclusory assertion that his death did not result from torture and other mistreatment to lack credibility.

Allegation letter sent on 12 October 2005 with the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression and Special Rapporteur on the question of torture

Allegation letter sent concerning Mr. Shavkat Komiljanovich Madumarov, 27 years, imam of the Mosque "Ismoil Ota" in Utra-Chirchik District of Tashkent region. According to the allegations received:

Shavkat Makhmudov was arrested on 16 February 2005 by Ministry of Interior officials. He was charged with "Wahhabism" under article 244-1 – preparing and distributing materials presenting a threat to public security. After the arrest he was severely ill-treated. In August 2005, during the trial at Tashkent city court, Shavkat Madumarov was unable to stand on his own. In order for him to be able to sit, he had to be bound to the chair. Before the court he made a statement to the effect that he regularly received injections without being informed of the reason for the injections. He claimed that, because of the injections, he was unable to move and he had headaches and a high temperature. The court did not respond to his allegations in relation to these issues. His condition further deteriorated and in the beginning of September he had to be carried into the court building.

Three days after having been sentenced to 6 years of imprisonment by Judge D. Saidaliev, Shavkat Madumarov died on 14 September 2005. His body was taken to his parents' home from the investigation isolator SI-1 "Tashturma". On that day their house on Bakht street 2, Toytepa town, Urta-Chirchik district was surrounded by around 40 military policemen. His relatives were not allowed to open the shroud in which Shavkat Makhmudov's body was wrapped and were forced to bury him immediately at the closest cemetery.

Since we are expected to report on these cases to the Commission, we would be grateful for your cooperation and your observations on the following matters:

1.         Are the facts alleged in the above summary of the case accurate?

2.         Has a complaint been lodged?

3.         Please provide the details, and where available the results, of any investigation, medical examinations, and judicial or other inquiries which may have been carried out in relation to this case. If no inquiries have taken place or if they have been inconclusive please explain why.

4.         Please provide the full details of any prosecutions which have been undertaken;

5.         Please indicate whether compensation has been provided to the family of the victim.

Response of the Government of Uzbekistan dated 28 November 2005

Since 2001, Mr. Shavkatjon Komiljonovich Madumarov had been actively involved in religious extremist activities directed at the violent change of Uzbekistan’s constitutional structure through the armed overthrow of the legitimate power and the establishment of an Islamic state.  He was arrested on 16 February 2005.

On 1 March 2005, Mr. Madumarov entered the UYa-63/IZ-1 holding facility in Tashkent, where he underwent an initial medical check-up.  The diagnosis made on the basis of the medical examination was periarteritis nodosa and HIV infenction.  During his stay, Mr. Madumarov received medical treatment.  On 9 August 2005, he reported to the medical unit, complaining of a cough, chest pains and high temperature.  He was diagnosed as having pneumocystc pneumonia; the secondary diagnosis was periarteritis nodosa with primary infection of the skin, dystrophy III and respiratory insufficiency II.

The detainee received in-patient treatment at the medical unit of the UYa-64/IZ-1 holding facility in Tashkent until 12 September 2005.

On 12 September 2005, the Tashkent city criminal court sentenced Mr. Madumarov to five years and six months’ imprisonment for having committed an offence pursuant to Article 244, paragraph 1, of the Uzbek Criminal Code (Formation, leadership or membership of religious extremist, separatist, fundamentalist or other banned organizations).

The same day, in order to conduct a full examination and provide treatment, Mr. Madumarov was transferred to the national hospital of the UYa-64/18 holding facility in Tashkent, where he was diagnosed with HIV infection, pneumocystic pneumonia, periarteritis nodosa and cardiovascular insufficiency II-III.

While at the national hospital, Mr. Madumarov received a complete check-up and was examined by specialists, after which he was diagnosed as having HIV infection IV, pre-AIDS stage (lymphadenopathy, chronia hepatitis, candidiasis of the oral cavity, encephalopathy and diarrhoea).  The secondary diagnosis was bilateral pneumonia, chronic drug addiction in the non-persistent remission stage, cachexia and severe anemia.

Despite having received medical treatment, Mr. Madumarov died on 14 September 2005.  On the same day, in order to allow funeral arrangements to be made, his body was turned over to this next of kin (his father, Komiljon Madumarov), who resides at 2 Bakht Street, Toitepa, Urta-Chirchik district, Tashkent province.

On learning of Mr. Madumarov’s death, the procuratorial authorities conducted a further inquiry, and on 24 September 2005 dropped criminal proceedings on the grounds of lack of evidence that a crime had been committed (Code of Criminal Procedure, art. 83, para. 2).

There is no substance to allegations that Mr. Madumarov was tortured or subjected to any other illegal forms of treatment.  No wrongful acts were committed against Mr. Madumarov, and no physical or psychological coercion was employed during the investigation or trial.

The above information concerning Mr. Madumarov and the causes of his death show that reports received by the Special Rapporteurs of the Commission on Human Rights are based on false information.

The Uzbek Government is of the view that such communications are sent to the Special Rapporteurs in order to discredit Uzbekistan’s human rights policy and to make unfounded accusations against Uzbek authorities concerning the “systematic use of torture” in law enforcement practice.

In this connection, the Uzbek Government considers it essential to draw the attention of the Special Rapporteurs to the fact that Uzbekistan has previously received unfounded allegations that the Uzbek citizens A. Shelkovenko (“he Shelkevenko case”), I. Umarov (“the Arnasi case”) and S. Umarov died as a result of torture.  In response to those unsubstantiated statements, the Uzbek authorities, conducted, with the assistance of international experts, independent investigations into all three deaths.  The findings of the investigations showed that the aforementioned assertions were unfounded.

In this connection, we consider it necessary to draw attention to the fact that the mandate of the Special Rapporteurs of the Commission on Human Rights requires them to use only reliable sources of information when considering individual communications.

Uzbekistan: Death Penalty in Andijan Trial

Violation alleged: Non-respect of international standards relating to the imposition of capital punishment

Subject(s) of appeal: 15 males

Character of reply: Allegations rejected but without adequate substantiation

Observations of the Special Rapporteur

The Special Rapporteur appreciates the information provided by the Government of Uzbekistan.  While the SR would note that the conclusory assertions provided by the Government do not respond to the serious allegations presented in his urgent appeal, he accepts the Government’s assurance that the persons tried in connection with the “Andijan events” of May 2005 will not be executed.

Urgent appeal sent on 21 October 2005 with the Special Rapporteur on Human Rights and counter terrorism, Special Rapporteur on the independence of judges and lawyers and Special Rapporteur on the question of torture

Urgent appeal sent concerning the on-going trial of 15 men, including 3 Kyrgyz citizens, accused of being the main organisers of the “Andijan events” of May 2005, before the criminal Chamber of the Supreme Court of Uzbekistan in Tashkent. Without any intention to intervene in the role of the judiciary in the matter and without prejudging the outcome of the trial, we wish to express our concern over the conduct of the executive in preparing the trials, and also in respect of certain elements of the legislative framework. According to our sources, 106 people are still in detention and are expected to face trial on similar charges.

According to the information we have received, the ongoing trial against 15 persons is based on charges of premeditated murder and terrorism, punishable by the death penalty. It is a source of concern to us that the crime of terrorism may not be defined in national law in a manner compatible with the requirements that follow from articles 6 and 15 of the International Covenant on Civil and Political Rights in relation to crimes that carry the death penalty.

Furthermore, reports indicate that, on the first day of the trial, all 15 defendants confessed their guilt and did so in terms which tracked the prosecution statement practically word by word. In addition, rather than seeking to defend their clients’ interests, the defendants’ attorneys instead posed questions which were not significant in terms of the charges or were formulated in such a way as to assist the prosecution case.  These allegations give weight to suggestions that the defendants had been intimidated into confessing and that the defence procedures were inadequate to ensure a fair trial.

Since, apart from the confessions, little evidence has been presented during the trial and since the defendants were not cross-examined by any independent lawyers to verify their testimonies, concern is expressed that their confessions may have been obtained by means of torture. Without prejudging how the Supreme Court will assess the confessions, we would expect your Excellency’s Government to initiate an investigation into the question of whether the confessions were in fact obtained through torture. 

 This concern is exacerbated by the fact that the previous Special Rapporteur on Torture, in his report on the visit to Uzbekistan (E/CN.4/2003/68/Add.2) stated that “torture or similar ill-treatment is systematic as defined by the Committee against Torture [and that] torture and other forms of ill-treatment appear to be used indiscriminately against persons charged for activities qualified as serious crimes such as acts against State interests, as well as petty criminals and others.”

While we do not wish to prejudge the accuracy of the allegations described above, we wish to express our concern that the allegations received indicate that the trial did not respect the principles of equality of arms of the parties and the presumption of innocence of the accused. We also fear that applying the charge of “terrorism” in this matter may be used as a tool by the executive to punish the defendants for the religious or political beliefs and convictions they hold. 

We are also concerned that the crimes with which the defendants have been charged allow for the use of the death penalty. We respectfully remind your Excellency that “in capital punishment cases, the obligations of States parties to observe rigorously all the guarantees for a fair trial set out in Article 14 of the International Covenant on Civil and Political Rights admits of no exception”. (Little v. Jamaica, communication no. 283/1988, Views of Human rights Committee of 19 November 1991, para. 10). Of particular relevance to the case at issue is the fact that these guarantees include the right not to be compelled to confess guilt.

In this regard we wish to remind you that GA Resolution 59/191, in its paragraph 1 stresses “that States must ensure that any measure taken to combat terrorism complies with their obligations under international law, in particular international human rights, refugee and humanitarian law;”

With reference to the above, we would be grateful for the cooperation and responses by your Excellency’s Government in respect of the following questions:

1.         Please provide us with the excerpts from your legislation that deal with terrorism, in particular those articles that define what terrorist acts and their punishments are and comment whether the laws in question comply with the requirements of article 15 of the International Covenant on Civil and Political Rights (nullum crimen sine lege, nulla poena sine lege, non-retroactivity of criminal law).

2.         Please also indicate on the basis of what criteria organizations are qualified as terrorist organizations and whether they can appeal against such qualification. Please provide the relevant legal base. Please, describe why Akromia has been qualified as a terrorist organization.

3.         Please describe the safeguards in place to ensure that the prosecutorial authorities prepare trial proceedings in conformity with all the requirements of art. 14 of the International Covenant on Civil and Political Rights.

4.         Please provide information on how the defense lawyers were selected and whether they had free access to the accused persons during the preparation of the trial and from which point in time on? Have they had full access to the files of the case in order to prepare the defense?

Response of the Government of Uzbekistan dated 28 October 2005

 “Despite the intention expressed in their letter to refrain from prejudging the accuracy of the allegations, the Special Rapporteurs, not waiting for an official reply from Uzbekistan, publicly circulated a joint statement on the given issue on 26 October 2005. This action testify to the gross violation of the mandate of the Special Rapporteurs.

A serious concern is caused over the fact that the statement of the Special Rapporteurs once again have tendencious and prejudiced characters. We regard as inadmissible such kind of statements, which are not taking into account at all a real situation in connection with the acts of terrorism in Andijan and outcome of the investigation. Threwith, not wating for outcome of court proceedings, the Special Rapporteurs doubted the competence of investigative and judicial bodies of the sovereign state.

We emphasize that in this case the subject matter relates to bringing to justice those persons who committed grave crimes punishable under criminal law and recognized worldwide, namely—premeditated murder, terrorism resulted in casualties among peaceful population, undermining the constitutional order.

The statement of the Special Rapporteurs contains explicit speculations causing perplexity of the Uzbek side. In particular, the reference is made to an alleged demand of a prosecutor to pass death penalty against defendants. In fact, during the trial process such demands have not been tabled. Moreover, the prosecutor, in view of gravity of crimes, has demanded to sentence the accused persons to imprisonment from 15 to 20 years.

As far as the assumptions on alleged usage of torture to get confessions of defendants are concerned, we once again draw the attention that all procedural measures relating to court proceedings are being implemented in full conformity with the national legislation and norms of international law. Neither defendants nor lawyers and nor relatives of the accused have not made such statements during court hearings, which are being conducted in open order.

Once again we draw the attention that representatives of the diplomatic corps and international organizations, including United Nations, OSCE/ODIHR, UNHCR, Shangai Cooperation Organization, and as well as international human rights organizations and mass-media have access to the court room without restrictions.

There are no restrictions on the part of the judicial authorities in monitoring the course of the process, which is conducted in strict conformity with the national legislation. Uzbekistan firmly adheres to basic principles of international law—the presumption of innocence and the right of court on rendering verdict.

In combating terrorism Uzbekistan is devoted to norms of international law, including the International Covenant on Civil and Political Rights, as well as Resolutions 1269, 1373, 1624 of the United Nations Security Council. The statement of the Special Rapporteurs give ground to believe that they are not fully informed of the efforts and policy ofd Uzbekistan in the field of combating terrorism.

We state that such actions of Special Rapporteurs undermine the authority of Special Procedures of the Commission on Human Rights and could be regarded as abuse of a mandate of a Special Rapporteur for political purposes aimed at discrediting a policy of a full-fledged member of the United Nations in the field of human rights. 

Response of the Government of Uzbekistan dated 29 November 2005

From 20 September to 14 November 2005, the criminal division of the Uzbek Supreme Court held open hearings in part of the criminal proceedings against 15 persons in connection with the terrorist acts and other particularly serious crimes committed on 12 and 13 May 2005 in Andijan.

The 15 persons were accused of committing offences under article 97 (Aggravated homicide), article 155 (Terrorism), article 159 (Crime against the constitutional order of the Republic of Uzbekistan), article 242 (Organization of a criminal association), article 244 (Mass disturbances), article 244, paragraph 1 (Preparation or dissemination of materials that threatens public order and security), article 244, paragraph 2 (Formation, leadership or membership of religious extremist, fundamentalist or other prohibited organizations), article 247 (Unlawful taking of firearms, ammunition or explosive or explosive devices), article 132 (Destruction of, or damage to, historical or cultural monuments) and other articles of the Uzbekistan Criminal Code.

The court found the accused guilty under the relevant articles of the Criminal Code and sentenced M. Sabirov, F. Khamidov, A. Khakimov, A. Gaziev and I. Khadzhiev to 20 years’ imprisonment; G. Nadirov to 18 years’ imprisonment; A. Ibragimov, M. Artykov and T. Khadzhiev to 17 years’ imprisonment; K. Turapov and A. Turgunov to 16 years’ imprisonment; and A. Yusupov, L. Imankulov, D. Burkhanov and V. Ergashev to 14 years’ imprisonment.

The course and outcome of the judicial proceedings show that the investigation and trial were conducted in strict conformity with Uzbekistan’s procedural legislation and the universally recognized norms of international law.

During the trial, more than 100 representatives of foreign and local media, diplomatic missions and international organizations, including the United Nations, the Office for Democratic Institutions and Human Rights of the Organization for Security and Cooperation in Europe, the Office of the United Nations High Commissioner for Human Rights, the Shanghai Cooperation Organization and international human rights organizations, such as Human Rights Watch and the American Association of Jurists, were present as observers.

No restrictions were placed by the court on observing the trial.  Both sides (defence and prosecution) were provided with equal conditions and opportunities for conducting impartial adversarial proceedings.

Unfortunately, for political or other reasons a number of human rights organizations and political circles in other countries were unable to be objective about the trial and questioned the actions taken by the investigative authorities and judicial bodies to bring the perpetrators to justice.

In this connection, we draw the attention of the Special Rapporteurs to the unfounded allegations in their joint communication concerning procedural violations during the investigation and trial.  In particular, the allegations cast doubt on the sincerity of the defendants’ testimony and the participation of lawyers in the pretrial investigation and the trial.

These baseless allegations reveal an obvious ignorance of the principles and provisions of Uzbek legislation on criminal procedure and a biased attitude towards the judicial proceedings against persons accused of committing a number of serious offences.

In the present case, it should be pointed out that, pursuant to article 46 of the Uzbek Code of Criminal Procedure, the accused has the right to make any statement concerning the substance of the charges.  At the same time, the accused is not required to testify, prove his or her innocence or adduce any other evidence.  However, sincere remorse is regarded as an extenuating circumstance (Criminal Code, art. 55).

The confessions of the accused (defendants) were, in fact, very similar to the bill of indictment.

There is no substance to the Special Rapporteurs’ allegation that the confessions of the accused “tracked the prosecution statement practically word by word” since, in accordance with Uzbek legislation on criminal procedure, the indictment is drawn up on the basis of the evidence, including the statements made by the accused.  This explains the similarity of the confessions made by the accused (defendants) with the bill of indictment.

The allegation that the accused (defendants) confessed under torture is also false.  During the pretrial investigation and the judicial examination, the accused and their defence lawyers did not submit any complaints concerning their subjection to physical, psychological or any other form of coercion.

Further proof of the baselessness of such allegations is the fact that a medical examination of each of the accused during the pretrial investigation did not reveal any traces of physical coercion.

During the trail, the presiding judge asked the defendants on a number of occasions whether they had been subjected to illegal methods or physical or psychological coercion.  The defendants invariably answered in the negative.

As to the allegation that the court did not examine the evidence sufficiently, it should be pointed out that, during the pretrial investigation, all substantiated evidence was carefully, thoroughly, comprehensively and objectively studied.  As a result, the body of evidence collected showed without a doubt that the accused were guilty as charged.

The evidence was set out in the bill of indictment, copies of which were given in good time to all the accused and to the lawyers representing their interests, and was carefully examined by the court.

The evaluation of the evidence and of the defendants’ plea of guilty or not guilty is the prerogative of the court.  Any conclusions concerning insufficient examination of the evidence made prior to the court’s handing down of its decision are premature and may be regarded as coercion of the court.

There is no substance to the Special Rapporteurs’ allegation that the authorities may be using the charge of terrorism in this matter as a tool to punish the defendants for the religious or political beliefs and convictions they hold.  Such an allegation shows how poorly informed the authors of the joint communication are about the nature and public danger of the offences committed by the defendants.

The case-file contains evidence showing that each defendant committed armed attacks on military facilities, police stations and other buildings, which were accompanied by the seizure of a large number of weapons, ammunition and hostages, the murder of law enforcement officers and civilians and the destruction of State property and the private property of citizens through arson, as well as a number of other particularly cruel and cynical crimes that cannot be justified under any circumstances by religious dogmas or political beliefs and convictions.

The allegation of improper conduct by lawyers in the performance of their professional duties is the purely subjective opinion of the authors of the joint communication.  Pursuant to articles 46 and 50, the accused (defendants) have the right to choose or refuse a lawyer.

The lawyers representing the interests of the defendants were chosen directly by the defendants themselves.  No restrictions were placed on lawyers’ meetings with the defendants, and no interference in lawyers’ activities was reported.

During the pretrial investigation and the trial, the accused (defendants) did not request the dismissal of the lawyers who had been selected or for their replacements.

 

Answers to the Special Rapporteurs’ questions:

1.         Terrorism as a punishable act is defined in article 155 of the Uzbek Criminal Code.  The article has four paragraphs.

“1.        Terrorism - violence, the use of force or other acts that pose a danger to individuals or property, or the threat of such acts, with a view to forcing a State body, international organization, their officials or natural persons or legal entities to carry out or refrain from carrying out an activity for the purposes of complicating international relations, violating sovereignty or territorial integrity, undermining State security, provoking war or armed conflict, destabilizing the social or political situation or intimidating the population, as well as activities for the purpose of securing the existence, operation or financing of a terrorist organization, preparing or committing terrorist acts or directly or indirectly supplying or collecting any means, resources or other services for terrorist organizations or persons who facilitate or participate in a terrorist activity - shall be punishable by 8 to 10 years’ imprisonment.

“2.        An attempt on the life of, or infliction of bodily harm on, a State or public figure or government representative committed in connection with their State or public activity in order to destabilize the situation, influence decision-making by State bodies or hinder political or any other public activity shall be punishable by 10 to 15 years’ imprisonment.

“3.        Acts covered in paragraphs 1 and 2 of this article which:

(a)        result in a person’s death; or

(b)        have other serious consequences,

shall be punishable by 15 to 20 years’ imprisonment or by the death penalty.”

Paragraph 4 sets out circumstances that exempt persons from liability:  “a person who participated in the preparation of terrorism shall be exempted from criminal liability if he or she warns the authorities in a timely manner or by other means contributes actively to the prevention of serious consequences and the terrorists’ attainment of their goals, provided that such person has not committed other offences”.

Article 15, paragraph 1, of the International Covenant on Civil and Political Rights states that “no one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed.  Nor shall a heavier penalty be imposed than the one that was applicable at the time when the criminal offence was committed.  If, subsequent to the commission of the offence, provision is made by law for the imposition of the lighter penalty, the offender shall benefit thereby”.

Article 15, paragraph 2, states that “nothing in this article shall prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognized by the community of nations”.

It is not possible to compare the above provisions of Uzbek legislation with the norms of international law prior to the court’s pronouncement of a decision, because article 155 of the Criminal Code defines the act and its punishment, whereas article 15 of the International Covenant regulates the principle of nulla poena sine lege.

2.         Akromiilar has been qualified by the investigative authorities as a religious extremist movement; an organization may be recognized as a terrorist organization only on the basis of a court decision.

Pursuant to article 55, paragraph 1 and article 56 of the Uzbek Code of Criminal Procedure, any natural person or legal entity against whom a decision has been taken with which such person or entity is not in agreement has the right to appeal the decision.

3.         The pretrial investigation and trial of persons involved in the commission of crimes during the Andijan events were conducted in full conformity with the norms of Uzbek legislation on criminal procedure, which is in line with the provisions of the International Covenant on Civil and Political Rights.  In particular, during the investigation, every accused person was immediately informed in detail, in a language that he understood, of the nature of and grounds for the charges against him.  There were no restrictions on the time an accused person had to prepare his defence or on the number of his meetings with lawyers.  During the trial, the defendants were provided conditions for the full exercise of their rights pursuant to Uzbek legislation on criminal procedure.

4.         Lawyers representing the interests of the defendants were chosen directly by the accused themselves; there were no restrictions on meetings.  The lawyers did not complain of any illegal actions or attempts at coercion.  Their right to represent the interests of the defendants was not infringed.

In accordance with article 49 of the Code of Criminal Procedure, the lawyers were given access to a criminal case as soon as the accused (defendants) were informed that proceedings were being instituted against them as suspects.