Consideration of admissibility
7.2 The Committee has noted the author’s
description of the torture to which her sons were
subjected to make them confess guilt (paras. 2.2, 2.3
and 2.6 above). She has identified the individuals
alleged to have participated in these acts. The
material submitted by the author also states that the
allegations of torture were brought to the attention of
the authorities by the victims themselves, and that
they were ignored. In these circumstances, and in the
absence of any pertinent explanation from the State
party, due weight must be given to her allegations, in
particular that the State party authorities did not
properly discharge their obligation effectively to
investigate complaints about incidents of torture.
The Committee considers that the facts as submitted
disclose a violation of article 7 in relation of the
author’s sons.
6.1 Before considering any claim contained in a
communication, the Human Rights Committee must,
in accordance with rule 93 of its Rules of Procedure,
decide whether or not the case is admissible under
the Optional Protocol to the Covenant.
6.2 The Committee begins by noting that the
author has not provided any proof that she is
authorized to act on behalf of her husband, despite
the fact that by the time of consideration of the
communication by the Committee he should have
already served his sentence. Neither has she
substantiated why it was impossible for the victim to
submit a communication on his own behalf. In the
circumstances of the case and in the absence of a
power of attorney or other documented proof that the
author is authorized to act on his behalf, the
Committee must conclude that as far as it relates to
her husband, the author has no standing under article
1 of the Optional Protocol.5
7.3 On the claim of a violation of the author’s
sons’ rights under article 14, paragraph 3 (g), in that
they were forced to sign a confession, the Committee
must consider the principles that underlie this
guarantee. It refers to its previous jurisprudence that
the wording, in article 14, paragraph 3 (g), that no
one shall “be compelled to testify against himself or
confess guilt”, must be understood in terms of the
absence of any direct or indirect physical or
psychological coercion by the investigating
authorities on the accused with a view to obtaining a
confession of guilt.6 The Committee considers that it
is implicit in this principle that the burden of proof
that the confession was made without duress is on
the prosecution. However, the Committee notes that
in this case, the burden of proof whether the
confession was voluntary was on the accused. The
Committee notes that both the Tashkent Regional
Court and the Supreme Court ignored the allegations
of torture made by the author’s sons. Therefore, the
Committee concludes that the State party has
violated article 14, paragraphs 2, and 3 (g).
6.3 The Committee has ascertained, as required
under article 5, paragraph 2 (a), of the Optional
Protocol, that the same matter is not being examined
under
another
procedure
of
international
investigation or settlement. Concerning the
exhaustion of domestic remedies, the Committee has
noted that according to the information submitted by
the author, all available domestic remedies have
been exhausted. In the absence of any pertinent
information from the State party, the Committee
considers that the requirements of article 5,
paragraph 2 (b), of the Optional Protocol have been
met with regard to the author and the author’s sons.
6.4 The Committee considers that there is no
impediment to the admissibility of the author’s
claims under articles 7; 9 and 17, with regard to
herself; articles 6; 7; 9, 14, paragraphs 1, 2, 3 (b),
(d), (e) and (g) with regard to the author’s sons, and
proceeds to consider it on the merits.
7.4 As to the author’s claim that her sons were
denied access to a lawyer of their choosing during
the pretrial investigation and the trial, the Committee
also notes the author’s contention that she was not
informed of the date of her sons’ trial and thus could
not hire an independent lawyer to defend them at the
trial. Their lawyer, subsequently hired by the author,
was twice refused permission to see his clients after
they were sentenced to death. The Committee recalls
its jurisprudence that, particularly in cases involving
capital punishment, it is axiomatic that the accused is
effectively assisted by a lawyer at all stages of the
Consideration of the merits
7.1 The Human Rights Committee has considered
the communication in the light of all the information
made available to it by the parties, as provided under
article 5, paragraph 1, of the Optional Protocol. It
notes that, while the State party has commented on
the author’s sons’ cases and their conviction, it has
not provided any information about the author’s
claims with regard to herself and her sons. In the
absence of any pertinent information from the State
party, due weight must be given to the author’s
allegations, to the extent that these have been
properly substantiated.
6
Berry v. Jamaica, communication No. 330/1988, Views
adopted on 4 July 1994, para. 11.7, Nallaratnam
Singarasa v. Sri Lanka, communication No. 1033/2001,
Views adopted on 21 July 2004, para. 7.4, and Deolall v.
Guyana, communication No. 912/2000, Views adopted on
1 November 2004, para. 5.1.
5
H. v. Italy, communication No. 565/1993,
inadmissibility decision of 8 April 1994, para. 4.2.
57
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents