Turkmenistan liable for enforced disappearance of former official

02.03.2015

Shikhmuradova v. Turkmenistan (2069/2011)

Summary

In October 2014, the Human Rights Committee was asked to consider whether Turkmenistan had violated its obligations under the International Covenant on Civil and Political Rights in connection with the enforced disappearance of a former public official.

The communication was submitted by a Russian national, on behalf of her husband, under the Optional Protocol to the Covenant.

Background

Shikhmuradova v. Turkmenistan (2069/2011)

Summary

In October 2014, the Human Rights Committee was asked to consider whether Turkmenistan had violated its obligations under the International Covenant on Civil and Political Rights in connection with the enforced disappearance of a former public official.

The communication was submitted by a Russian national, on behalf of her husband, under the Optional Protocol to the Covenant.

Background

The author’s husband, Mr Boris Shikhmuradov, served at various times as Deputy Prime Minister of Turkmenistan, as Minister of Foreign Affairs of Turkmenistan and as the Turkmen Ambassador to the People’s Republic of China.

On 1 November 2001, while in Moscow, the author’s husband issued a statement through the Russian media regarding his intention to establish the People’s Democratic Movement of Turkmenistan in opposition to the current regime in Turkmenistan.

On 2 November 2001, the Prosecutor-General of Turkmenistan issued an arrest warrant against the author’s husband based on a criminal case pending against him since 30 June 2001, accusing him of a number of crimes including trafficking arms and explosives.

On 25 November 2002, the official media in Turkmenistan accused the author’s husband of masterminding an alleged attempt on the President’s life and an alleged campaign of civil disobedience. 

On 25 December 2002, the author’s husband was arrested in Ashgabat by the Ministry of National Security. On 29 December 2002, the Supreme Court of Turkmenistan sentenced the author’s husband to 25 years of imprisonment for attempting to overthrow the Government and assassinate the President. On 30 December 2002, his sentence was changed to life imprisonment by decision of the People’s Council, despite the Criminal Code of Turkmenistan not providing for such a punishment.  Over 50 other co-defendants, including the brother of the author’s husband, were sentenced during the same trial, with reports alleging that they were severely tortured while in detention.

The author has been unable to appeal the court decision before the Turkmen courts.

Since her husband’s arrest, the author has not received any information about her husband’s place of detention or state of health. She has repeatedly asked the Prosecutor‑General, the Ministry of Justice, the Ministry of Internal Affairs and the President of Turkmenistan to provide her with such information, but to no avail. 

On 28 April 2011, the author filed this communication with the Committee under the Optional Protocol to the Covenant. The author claimed that her husband was the victim of violations by Turkmenistan of his rights to: (i) life, (ii) freedom from torture and cruel and inhuman treatment, (iii) liberty and security of the person, (iv) a fair trial, (v) freedom from retroactive criminal legislation, and (vi) freedom from unlawful interference with the family (under articles 6, 7, 9, 14, 15 and 17 of the Covenant respectively).

The Committee’s decision

Regarding the admissibility of the author’s claims, the Committee found that the communication was admissible to the extent that it raised issues under articles 6, 7, 9 (with respect to the detention of the author’s husband after his conviction), 14, 15 and 17. The Committee found, however, that the author’s claims under article 9 in relation to her husband’s initial detention was inadmissible for lack of substantiation (under article 2 of the Optional Protocol).

On the merits, the Committee noted that Turkmenistan had failed to submit observations regarding the author’s claim. The Committee recalled that it may consider allegations to have been substantiated in cases where the author of a communication has submitted allegations that are corroborated by credible evidence and where further clarification depends on information that is solely in the hands of the State party and which the State party has failed to provide.

On this basis, the Committee observed that the author’s husband had been arrested, tried and sentenced to life imprisonment, and that since that time had been unable to communicate with his wife or any other members of his family. The Committee also noted that the author and her husband’s relatives did not have any information about the health or whereabouts of the author’s husband despite numerous requests to the Turkmen authorities. The Committee recalled its jurisprudence that State parties are accountable for the risk to an individual’s life caused by a failure to acknowledge the deprivation of their liberty. The Committee also recalled its General Comment No. 20 in which it recommended that State parties make provision against incommunicado detention.

The Committee noted that the trial in which the author’s husband was first sentenced took place only four days after his arrest, was not open to the public and lasted only one day. Further, the Committee observed that the conviction was made solely on the basis of a forced confession. The Committee recalled that the Covenant provides for the right to a fair and public hearing by a competent, independent and impartial tribunal established by law. The Committee found that the People’s Council, a political body led by the President and including members of the Parliament and cabinet ministers, could not be considered an independent and impartial tribunal. The Committee also observed that the Turkmen authorities had imposed a heavier penalty on the author’s husband than that which was applicable at the time when the criminal offence was alleged to have been committed.

With respect to the author herself, the Committee also noted the anguish and distress caused by the incommunicado detention and disappearance of her husband.

In the light of the above, the Committee concluded that Turkmenistan had violated the rights of the author’s husband under articles 6(1), 7, 9, 14(1) and 14(5) of the Covenant. The Committee also found a violation of article 7 of the Covenant with respect to the author. Having found a violation of article 7, the Committee did consider it necessary to consider the author’s claims under article 17.

In accordance with article 2(3)(a) of the Covenant, the Committee observed that Turkmenistan was under an obligation to provide the author and her husband with an effective and appropriate remedy, including:

(a)releasing the author’s husband immediately if he is still being detained;

(b)conducting a thorough and effective investigation into his detention, disappearance and unfair trial;

(c)providing him and the author with detailed information on the results of the  investigation;

(d)in the event that the author’s husband is deceased, handing over his remains to the author;

(e)prosecuting those responsible for the violations committed; and

(f)providing adequate compensation to the author and her husband for the violations suffered.

The Committee found that Turkmenistan was also under an obligation to prevent similar violations in the future.

Turkmenistan must now submit its written response within six months of the Committee’s decision, including information on the action taken in light of the Committee’s recommendations, and ensure that the Committee’s decision is published widely.

Sam Hunter Jones is an international lawyer, based in London.