Human Rights Committee

Views adopted by the Committee under article 5 (4) of the Optional Protocol, concerning communication No. 2224/2012 * , **

C om m unication s ubmitted by:DovranBahramovichMatyakubov(represented by counsel, Shane H. Brady)

Alleged victim:The author

State party:Turkmenistan

Date of communication:3 September 2012 (initial submission)

Document references:Decision taken pursuant to rule 97 of the Committee’s rules of procedure, transmitted to the State party on 7 December 2012 (not issued in document form)

Date of adoption of Views:14July2016

Subject matter:Conscientious objection to compulsory military service; inhuman and degrading treatment;conviction for the same offence twice;conditions of detention

Procedural issue s : Admissibility — exhaustion of domestic remedies

Substantive issues: Freedom of conscience; inhuman and degrading treatment; ne bis in idem; conditions of detention

Articles of the Covenant:7, 10, 14 (7)and 18 (1)

Articles of the Optional Protocol:5(2)(b)

1.1The author of the communication is DovranBahramovichMatyakubov, a national of Turkmenistan born on18 September 1992. He claims to be the victim ofa violation by the State party of his rights under articles 7, 14 (7)and 18 (1) of the Covenant, due to his repeated prosecution, conviction and imprisonment as a conscientious objector. Although the author does not invoke this provision specifically, the communication also appears to raise issues under article 10 of the Covenant. The Optional Protocol entered into force for the State party on 1 August 1997. The author is represented by counsel, Shane H. Brady.

1.2In his initial communication, dated 3 September 2012, the author requested that the Committee apply rule 92 of its rules of procedure and seek assurances from the State party as an interim measurethat it would not subject him to a second round of criminal prosecution and conviction, pending examination of his communication by the Committee. On 7 December 2012, the Committee, acting through its Special Rapporteur on new communications and interim measures, decided not to accede to the request to grant interim measures.

The facts as submitted by the author

2.1The author is a Jehovah’s Witness. Before his repeated and unlawful criminal convictions as a conscientious objector, he had neverbeen charged with any criminal or administrative offence.

2.2On 17 September 2010, he was called by the Military Commissariat to perform his compulsory military service. He explained in detail to representatives of the Military Commissariat that, as a Jehovah’s Witness, his religious beliefs did not permit him to perform military service. However, he was charged with refusing military service, under article 219(1) of the Criminal Code.

2.3The author’s trial took place on 28 December 2010 in Boldumsaz District Court. He explained in detail the reasons why his religious beliefs did not permit him to perform military service and that he was willing to perform alternative civilianservice. On the same day, Boldumsaz District Court sentenced him to 18 months of imprisonmentfor refusing military service, under article 219(1) of the Criminal Code, to be served in a “general regime” colony. He was arrested in the courtroom and was placed in the DZK-7 detention facility in Dashoguz, where he was held in custody for 71 days. On 8 March 2011, hewas transferred to the LBK-12 prison, which is located near the town of Seydi, in the Lebapregion, in the desert of Turkmenistan. While in detention, as a Jehovah’s Witness, the author was singled out for harsh treatment. Immediately he arrived at the LBK-12 prison, he was placed in solitary confinement for 10 days.

2.4On 28 June 2012, the author was released from prison. He was required to report regularly to the Boldumsaz police department. At the time of submitting his communication, he faced the prospect of again being called up for military service and again being imprisoned as a conscientious objector.

2.5The author considers that the 28 December 2010 decision of Boldumsaz District Court satisfies his obligation to exhaust all reasonable domestic remedies prior to filing the present communication. He did not appeal his first conviction to the higher courts in Turkmenistan.

2.6In a further submission, dated 1 May 2013, the author indicates that on 3 November 2012 he received a summons from the Military Commissariat to report for military service. He explained again to the Military Commissariat officials the reasons why he would not perform military service. He also stated that he now only had 30 per cent sight in his left eye, and that due to the extra load his right eye sometimes did not see anything. He stated that his doctor warned him that if he did not do something about the problem, he might go blind. On 24 December 2012, six months after he had been released from prison, he was brought to trial again,atBoldumsaz District Court, in the Dashoguzregion. He told the judge that as a Jehovah’s Witness, his religious conscience did not permit him, directly or indirectly, to bear arms or to learn war. He also told the judge about his eye problem and emphasized that he was ready to perform alternative civilian service. However, he was convicted for a second time as a conscientious objector and was sentenced to the maximum term of 24 months of imprisonment, under article 219(1) of the Criminal Code. He was considered a repeat offender and was sent to a “strict regime” prison. On 17 January 2013, Dashoguz Regional Court dismissed the author’s appeal against the first instance judgment. After the trial, he was held for approximately 15 days in the DZ-D/7 temporary detention centre located in Dashoguz, where he was subjected to additional mistreatment and threats by officers of the sixth police department of Dashoguz.The author indicated that he was beaten for three days, that the detention officials tried to force him to renounce his faith, and thatthey humiliated him on account of his convictions. On 10 January 2013, the author was transferred to the LBK-11 strict regime colony in Seydi, where he served his sentence in conditions considered worse than those of the LBK-12 general regime colonywhere he had served his first term of imprisonment. The author claims that he was always monitored when he was in LBK-11, and was not allowed to associate freely with his fellow believers who were in the same prison. He submits that he has twice been convicted and imprisoned for his refusal to accept military service, which is “based on the same constant resolve grounded in reasons of conscience”.

2.7Specifically, as concerns the alleged violation of article 7 of the Covenant, the author states that filing a complaint with the prison administration or other State agencies for serious acts of mistreatment would only serve to expose the applicants to harsh retaliation and further physical abuse. He maintains that there was no effective domestic remedy available to him to complain about the “inhuman or degrading treatment or punishment” suffered while in detention and in prison. He refers to the concluding observations on Turkmenistan by the Committee against Torture,in which that Committee noted the lack of an independent and effective complaint mechanism in the State party for receiving torture allegations and conducting impartial and comprehensive investigations, particularly when the allegations were submitted by prisoners and pretrial detainees.

2.8As regards the alleged violation of article 14 (7) of the Covenant, and invoking similar argumentation to that used in Navruz Nasyrlayev v. Turkmenistan, the author states that article 18 (4) of the Military Service and Military Duty Act expressly permits the repeated prosecution and imprisonment of conscientious objectors to military service. As a result, no domestic remedy was available for him to be able to obtain redress against his repeated prosecution, conviction and imprisonment for beinga conscientious objector to military service.Moreover, on 17 January 2013, Dashoguz Regional Court dismissed the author’s appeal against the 24 December 2012 district court judgment in regard tohis second conviction.

2.9In relation to the alleged violation of his rights under article 18 (1) of the Covenant, the author submits that the national courts — trial courts, appeal courts and the Supreme Court —have never ruled in favour of a conscientious objector to military service.These facts,together with the repeated rejection of international appeals to provide for alternative civilian service, which is compatible with the reasons for conscientious objection, and to release imprisoned conscientious objectors, confirm that there is no domestic remedy available in Turkmenistan for conscientious objectors to military service to challenge their criminal prosecution, conviction and imprisonment. The author thus maintains that he had exhausted the available domestic remedies concerning the alleged violation of article 18 (1) of the Covenant, prior to submitting his communication to the Committee.

2.10The author has not submitted his communication to any other procedure of international investigation or settlement.

The complaint

3.1The author claims that his prosecution and imprisonment onaccount of his 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.

3.2The author also claims a violation of article 7 of the Covenant on account of the “inhuman or degrading treatment or punishment” he received while in detention, which included police brutality, and on account of the conditions of imprisonment at the LBK-12 prison. In this regard, he refers, inter alia, to the concluding observations on Turkmenistan by the Committee against Torture, the jurisprudence of the European Courtof Human Rights,and the report of February 2010 by the country’s Independent Lawyers Association.These documents indicate that the practice of torture and ill-treatment of detainees is widespread in the State party. They also highlight the serious risk of being subjected to torture or inhuman or degrading treatment or punishment upon removal to Turkmenistan, and the fact that theLBK-12 prison is situated in a desert wheretemperatures fall to -20°Cin winter and rise to 50°Cin the summer heatwaves. The prison is overcrowded, and prisoners with tuberculosis and skin diseases are kept together with healthy inmates, putting the author at a high risk of contracting tuberculosis and other infections. Although the author does not invoke article 10 of the Covenant specifically, the communication also raises issues under that article.

3.3In the present case, the author has twice been prosecuted, convicted and imprisoned for his refusal to accept military service — which is “based on the same constant resolve grounded in reasons of conscience” — in violation of article 14 (7) of the Covenant.

3.4The author further claims that his prosecution, conviction and imprisonment for refusing to perform compulsory military service due to his religious beliefs and his conscientious objection have violated his rights under article 18 (1) of the Covenant. He notes that he repeatedly informed the Turkmen authorities that he was willing to fulfil his civic duties by performing genuine alternative service, butthat the State party’s legislation does not provide forsuch an alternative.

3.5The author requests the Committee to conclude that his repeated prosecution, conviction and imprisonment violate articles 7, 14 (7) and 18 (1) of the Covenant. He also requests the Committee to direct the State party: (a) to acquit him of the charges under article219 (1) of the Criminal Code and to expunge his criminal record; (b) to provide him with appropriate compensation for the non-pecuniary damage that he suffered as a result of his convictions and imprisonment; and (c) to provide him with appropriate monetary compensation for his legal expenses, in accordance with article 2 (3) of the Covenant.

State party’s observations on admissibility and the merits

4.By means of a note verbaledated 17 March 2014, the State party advised, inter alia, 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 decision”. According to the State party, the criminal offence committed by the author was “determined accurately according to the Criminal Code of Turkmenistan”. The State party also notesthat according to article 41 of the Constitution, “protection of Turkmenistan is the sacred duty of every citizen”, and advises that general conscription is compulsory for male citizens of Turkmenistan. In addition, the author “did not meet the criteria of persons to be exempted from military service as provided for under article 18 of the Military Service and Military Duty Act”.

Author’s comments on the State party’s observations

5.1On 14 May 2014, the author submittedthat the State party had not contested any of the facts set out in his communication. The only attempted justification raised by the State party was its assertion that the author was convicted and imprisoned as a conscientious objector to military service because he “did not qualify” for an exemption from military service under article 18 of the State party’s Military Service and Military Duty Act. The author considers that the State party’s observations show total disregard for its commitments under article 18 of the Covenant and for the Committee’s jurisprudence, which upholdthe right to conscientious objection to military service. Furthermore, the State party did not contest the author’s allegations that he had suffered — contrary to article 7 of the Covenant — inhuman and degrading treatment at the hands of law enforcement officers and prison officers.

5.2The author requests that the Committee conclude that his prosecution, conviction and imprisonment violatehis rights under articles7and 18 (1) of the Covenant, and that his repeated prosecution and imprisonment alsoviolates article 14 (7) of the Covenant,andhe reiterates his requestfor remedies (see para. 3.5).

5.3On 26 January 2015, the author provided further information that on 22 October 2014, the President of Turkmenistan amnestied eight imprisoned Jehovah’s Witnesses, including the author, three of whom had communications pending with the Committee. When the author of the present communication was released, he had served 22 months out of his sentence of 24 months of imprisonment. Although the development was welcome, the author was not exonerated of his criminal conviction, nor was his criminal record expunged or any rehabilitation offered. The author adds that several other Jehovah’s Witnesses had been convicted for refusing military serviceand been sentenced to “correctional labour” about three weeks before the amnesty. The author expresses hope that the State party will take steps to halt the prosecuting and convicting of Jehovah’s Witnesses, including for their conscientious objection to military service, and requests that the State party propose a friendly settlement concerning the pending communications from the conscientious objectors.

Issues and proceedings before the Committee

Consideration of admissibility

6.1Before considering any claims contained in a communication, the Committee must decide, in accordance with rule 93 of its rules of procedure, whether it is admissible under the Optional Protocol.

6.2The 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.

6.3The 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 author.The Committee notes the author’s submissionthat there are no effective remedies available to him in the State party with regard to his claims under articles 7, 10, 14(7) and 18 (1) of the Covenant, and that he considers that he has exhausted the available domestic remedieswith the decisions of Boldumsaz District Court and DashoguzRegional Courtin regard to his first and second convictions and sentencesfor being a conscientious objector.The Committee also notes the State party’s assertion of 17 March 2014 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 decision”, and further notesthat the State party has not contested the author’s argumentationconcerning 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.

6.4The Committee considers that the author’s claims, raising issues under articles 7, 10, 14 (7) and 18 (1) of the Covenant, are sufficiently substantiated for the purposes of admissibility, declares them admissible and proceeds to their examination on the merits.

Consideration of the merits

7.1The Committee has considered the present communication in the light of all the information made available to it by the parties, as required under article 5 (1) of the Optional Protocol.

7.2The Committee notes the author’s claim that, after his conviction, he was placed in the DZK-7 detention facility in Dashoguz for 71 days, and that he was placed in solitary confinement for 10 days immediately upon his arrival at the LBK-12 prison, where as a Jehovah’s Witness he was singled out for harsh treatment. The Committee also notes that after the trial of 24 December 2012, the author was held for approximately 15 days in the DZ-D/7 temporary detention centre in Dashoguz, where officers of the sixth police department of Dashoguz reportedly beat him for three daysin an attempt to get him torenounce his faith. The author felt humiliated on account of his convictions. In addition, the Committee notes the author’s allegations regarding the lack of adequate mechanisms for investigation of claims of torture in Turkmenistan, and recalls that complaints of ill-treatment must be investigated promptly and impartially by competent authorities.The State party has not refuted these allegations, nor has it provided any information in this respect. In the circumstances of the present case, the Committee decides that due weight must be given to the author’s allegations. Accordingly, the Committee concludes that the facts as presented reveal a violation of the author’s rights under article 7 of the Covenant.

7.3The Committee further notes the author’s claims concerning the deplorable conditions at the LBK-12 prison. He claimed, for example, that in the cells under the general prison regime, he endured harsh climatic conditions due to exposure to the hot summer and the cold winter. He also claimed that the prison was overcrowded and that prisoners with tuberculosis and skin diseases were kept together with healthy inmates,puttinghim at a high risk of contracting tuberculosis and other infections.The Committee notes the author’s claims that he was always monitored when he was in the LBK-11 prison, and that he was not allowed to associate freely with his fellow believers who were in the same prison. The Committee notes that the State party did not contest theseallegations.The Committee recalls that persons deprived of their liberty may not be subjected to any hardship or constraint other than that resulting from the deprivation of liberty; they must be treated in accordance with, inter alia, the Standard Minimum Rules for the Treatment of Prisoners. In the absence of any other pertinent information on file, the Committee decides that due weight must be given to the author’s allegations. Accordingly, the Committee finds that confining the author in such conditions constitutes a violation of his right to be treated with humanity and with respect for the inherent dignity of the human person under article 10 (1) of the Covenant.

7.4The Committee also notes the author’s claim under article 14 (7) of the Covenant that he has been convicted and punished twice for his objection to performing compulsory military service, which is “based on the same constant resolve grounded in reasons of conscience”. The Committee further notes that, on 28December 2010, Boldumsaz District Court convicted and sentenced the author to 18 months of imprisonment, under article 219(1) of the Criminal Code, for his refusal to perform compulsory military service, and that he was then convicted again by the same court under article 219 (1) of the Criminal Code on 24 December 2012 and sentenced to 24 months of imprisonment. The Committee notes the author’s submission that article 18 (4) of the Military Service and Military Duty Act permits repeated call-up for military service and stipulates that a person refusing military service is exempt from further call-ups only after he has received and served two criminal sentences. The Committee notes that these claims were not refuted by the State party.

7.5The Committee recalls its general comment No. 32 (2007) on the right to equality before courts and tribunals and to a fair trial, wherein, inter alia, it stated that article 14 (7) of the Covenant provides that no one shall be liable to be tried or punished again for an offence of which they have already been finally convicted in accordance with the law and penal procedure of each country. Furthermore, repeated punishment of conscientious objectors for not obeying a renewed order to serve in the military may amount to punishment for the same crime if such subsequent refusal is based on the same constant resolve grounded in reasons of conscience. The Committee notes that in the present case, the author has been tried and punished twice with lengthy prison sentences under the same provision of the Criminal Code of Turkmenistan on account of the fact that, as a Jehovah’s Witness, he objected to, and refused to perform, compulsory military service. In the circumstances of the present case, and in the absence of contrary information from the State party, the Committee concludes that the author’s rights under article 14 (7) of the Covenant have been violated.

7.6The Committee also notes the author’s claim that his rights under article 18 (1) of the Covenant have been violated, due to the absence in the State party of an alternative to compulsory military service, as a result of which his refusal to perform military service on account of his religious conscience led to his criminal prosecution and subsequent imprisonment. The Committee takes note of the State party’s submission that the criminal offence committed by the author was “determined accurately according to the Criminal Code of Turkmenistan” and that, pursuant to article 41 of the Constitution, “protection of Turkmenistan is the sacred duty of every citizen” and general conscription is compulsory for male citizens.

7.7The Committee recalls its general comment No. 22 (1993) on the right to freedom of thought, conscience and religion, in which it considers that the fundamental character of the freedoms enshrined in article 18 (1) is reflected in the fact that this provision cannot be derogated from, even in time of public emergency, as is stated in article 4 (2) of the Covenant. The Committee recalls its prior jurisprudence that although the Covenant does not explicitly refer to a right of conscientious objection, such a right derives from article 18, inasmuch as the obligation to be involved in the use of lethal force may seriously conflict with freedom of thought, conscience and religion. The right to conscientious objection to military service inheres in the right to freedom of thought, conscience and religion.It entitles any individual to an exemption from compulsory military service if such service cannot be reconciled with that individual’s religion or beliefs. The right must not be impaired by coercion. A State may, if it wishes, compel the objector to undertake a civilian alternative to military service, outside the military sphere and not under military command. The alternative service must not be of a punitive nature. It must be a real service to the community and compatible with respect for human rights.

7.8In the present case, the Committee considers that the author’s refusal to be drafted for compulsory military service derives from his religious beliefs and that the author’s subsequent conviction and sentence amounted to an infringement of his freedom of thought, conscience and religion in breach of article 18 (1) of the Covenant. In this context, the Committee recalls that repression of the refusal to be drafted for compulsory military service, exercised against persons whose conscience or religion prohibits the use of arms, is incompatible with article 18 (1) of the Covenant.It also recalls that during the consideration of the State party’s initial report under article 40 of the Covenant, it already expressed its concern that the Military Service and Military Duty Act, as amended on 25September 2010, does not recognize a person’s right to exercise conscientious objection to military service and does not provide for any alternative to military service, and recommended that the State party, inter alia, take all necessary measures to review its legislation with a view to providing for alternative service. Accordingly, the Committee finds that, by prosecuting and convicting the author for his refusal to perform compulsory military service due to his religious beliefs and conscientious objection, the State party has violated his rights under article 18 (1) of the Covenant.

8.The Committee, acting under article 5(4) of the Optional Protocol, is of the view that the facts before it disclose a violation of the author’s rights under articles 7,10 (1), 14(7) and 18 (1) of the Covenant.

9.In accordance with article 2 (3) (a) of the Covenant, the State party is under an obligation to provide the author with an effective remedy. This requires it to make full reparation to individuals whose Covenant rights have been violated. Accordingly, the State party is obligated, inter alia, to impartially, effectively and thoroughly investigate the author’s claims falling under article 7 of the Covenant, to prosecute any person(s) found to be responsible,to expungethe author’s criminal record,and to provide him withadequate compensation. The State party is under an obligation to avoid similar violations of the Covenant in the future. In this connection, the Committee reiterates that the State party should revise its legislation in accordance with its obligation under article 2(2) of the Covenant, in particular the Military Service and Military Duty Act, as amended on 25September 2010, with a view to guaranteeing effectively the right to conscientious objection under article 18(1) of the Covenant.

10.Bearing in mind that, by becoming a party to the Optional Protocol, the State party has recognized the competence of the Committee to determine whether there has been a violation of the Covenant or not and that, pursuant to article 2 of the Covenant, the State party has undertaken to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the Covenant, and to provide an effective and enforceable remedy when a violation has been established, the Committee wishes to receive from the State party, within 180 days, information about the measures taken to give effect to the Committee’s Views. The State party is also requested to publish the Committee’s Views.

Annex

Joint opinion of Committee members Yuji Iwasawa and Yuval Shany (concurring)

We concur with the Committee’s conclusion that the State party has violated the rights of the author under article 18 (1) of the Covenant, but for reasons different from the majority of the Committee. We will retain our reasoning even though we may not find it compelling to repeat it in future communications.