CCPR/C/117/D/2225/2012
military service submitted by him to Berkararlyk District Military Commissariat on 22
December 2014 and other evidence examined during the court hearing.
7.2
The State party argues that the author’s claim of having been convicted twice for the
same offence is unfounded. According to article 3 (8) of the Criminal Code, no one can be
held criminally liable twice for the same offence. Pursuant to articles 17 (1) and 18 (4) of
the Military Service and Military Duty Act, the author’s conviction in 2012 under article
219 (1) of the Criminal Code is not a ground for absolving him from military service until
he turns 27. Furthermore, he cannot be absolved from criminal liability for having
committed an analogous offence in 2014, because those criminal offences were committed
at different points in time and comprise separate corpus delicti. Therefore, the author can be
held criminally liable for each of those offences.
7.3
In light of the above, the State party argues that there are no grounds to initiate the
setting aside or amendment of the judgments handed down in relation to the author.
Issues and proceedings before the Committee
Consideration of admissibility
8.1
Before considering any claim contained in a communication, the Committee must
decide, in accordance with rule 93 of its rules of procedure, whether the case is admissible
under the Optional Protocol.
8.2
The Committee has ascertained, as required under article 5 (2) (a) of the Optional
Protocol, that the same matter is not being examined under another procedure of
international investigation or settlement.
8.3
The Committee recalls its jurisprudence to the effect that authors must avail
themselves of all domestic remedies in order to fulfil the requirement of article 5 (2) (b) of
the Optional Protocol, insofar as such remedies appear to be effective in the given case and
are de facto available to the authors. 8 The Committee notes the author’s assertion that there
are no effective remedies available to him in the State party with regard to his claims under
articles 7, 14 (7) and 18 (1) of the Covenant. 9 The Committee also notes the State party’s
assertion that the author’s case had been carefully considered by the relevant law
enforcement bodies of Turkmenistan and no reason had been found to appeal the court’s
decision and that the State party has not contested the author’s argumentation concerning
the exhaustion of domestic remedies. In these circumstances, the Committee considers that
it is not precluded by article 5 (2) (b) of the Optional Protocol from examining the
communication.
8.4
With regard to the author’s claim that his prosecution and conviction on the ground
of his genuinely held religious beliefs expressed in his conscientious objection to military
service in itself constitutes inhuman or degrading treatment within the meaning of article 7
of the Covenant, the Committee notes that he has failed to provide any substantiation in
support of his claim and, consequently, considers this part of the communication
inadmissible under article 2 of the Optional Protocol.
8
9
See, for example, communication No. 2097/2011, Timmer v. the Netherlands, Views adopted on 24
July 2014, para. 6.3.
See communications No. 2221/2012, Mahmud Hudaybergenov v. Turkmenistan, Views adopted on 29
October 2015, para. 6.3; No. 2222/2012, Ahmet Hudaybergenov v. Turkmenistan, Views adopted on
29 October 2015, para. 6.3; and No. 2223/2012, Japparow v. Turkmenistan, Views adopted on 29
October 2015, para. 6.3.
5