CCPR/C/119/D/2555/2015
Furthermore, the author claims that his counsel was prevented from representing him on 4
and 5 January 2013, notwithstanding that the charges against him were altered at that time.
The Committee notes the State party’s submission that the author and the counsel were
given ample opportunity to meet confidentially, particularly on 8 August 2012. On the other
hand, the Committee observes that the State party does not deny that the conditions in
which the 8 August meeting was held — in the presence of officials and with devices
recording the conversation — precluded confidentiality. Furthermore, the State party has
not specified the dates, duration and conditions of other confidential meetings. The
Committee also notes the State party’s submission that the counsel was unavailable to
represent the author on 4 January 2013 and did not object to the appointment of another
lawyer, which is contested by the author. The Committee notes the author’s submission that
the counsel, who contacted the investigator daily, and particularly on 5 January 2013, was
not informed of the alteration of the charges, and that the author was not allowed to contact
his counsel in relation to this procedural action until 6 January 2013. It also notes that the
State party has not explained why such a restriction on the author’s contact with his counsel
was necessary. It further notes that three new counts were added to the author’s indictment,
that he was questioned in relation to the new charges and that he refused to sign the
questioning record and the new indictment in the absence of his trusted privately retained
counsel. In the circumstances and on the basis of the material before it, the Committee
considers that the facts as submitted reveal a violation of the author’s rights under article 14
(3) (b) of the Covenant.
8.7
The Committee notes the author’s claim that he was not allowed to obtain the
attendance and questioning of a number of witnesses who could have confirmed his
innocence, including the instigator A., and attesting witnesses, despite the availability of the
latter, whereas all witnesses against him were heard by the court. In particular, Bekabad
City Court rejected the counsel’s motion to call additional witnesses on the grounds that
they had not been identified as such by the investigation.
8.8
The Committee recalls that article 14 (3) (e) of the Covenant guarantees the right of
accused persons to examine, or have examined, the witnesses against them and to obtain the
attendance and examination of witnesses on their behalf under the same conditions as
witnesses against them. As an application of the principle of equality of arms, this
guarantee is important for ensuring an effective defence by the accused and his or her
counsel and thus guarantees the accused the same legal powers of compelling the
attendance of witnesses and of examining or cross-examining any witnesses as are available
to the prosecution. It does not, however, provide an unlimited right to obtain the attendance
of any witness requested by the accused or his or her counsel, but only a right to have
witnesses admitted that are relevant for the defence, and to be given a proper opportunity to
question and challenge witnesses against them at some stage of the proceedings. 11
8.9
The Committee notes the State party’s contention that all witnesses cognizant of the
events were questioned, that two witnesses were questioned additionally at the counsel’s
request, that it was impossible to establish the identity and whereabouts of A., that no
requests to question customs and National Security Service officials were submitted by the
author or his counsel after studying the case file, and that, in any event, questioning of other
witnesses was not deemed necessary or relevant by the investigator and Bekabad City Court.
The Committee notes, however, that the majority of the witnesses whose questioning was
requested by the author and his counsel were not questioned at the hearings of Bekabad
City Court and Tashkent Regional Court, and that the State party did not provide any
reasons for not allowing those witnesses to be questioned. In these circumstances, the
Committee concludes that the facts as submitted reveal a violation of the author’s rights
under article 14 (3) (e) of the Covenant.
9.
The Committee, acting under article 5 (4) of the Optional Protocol, is of the view
that the information before it discloses a violation by the State party of articles 7, 9 (1), and
14 (3) (b), (e) and (g) of the Covenant.
11
12
See the Committee’s general comment No. 32 (2007) on the right to equality before courts and
tribunals and to a fair trial, para. 39.